Associated Press
An artist rendering from last week's high court deliberations.
The week after the health care drama at the Supreme Court, some on the right are so confident about the outcome, they see no reason to delay the taunting. They'll engage in some pre-decision chest-thumping now, setting the stage for more vigorous and more obnoxious celebrations over the summer.
Here, for example, is John Podhoretz mocking those who expected the administration to prevail at the high court (via Jon Chait).
The panicked reception in the mainstream media of the three-day Supreme Court health-care marathon is a delightful reminder of the nearly impenetrable parochialism of American liberals.
Jay Cost was slightly more circumspect, but argued along similar lines.
The Court might very well uphold the law, but it will not nearly be the slamdunk that almost all liberals thought it would be. Why did the left get it so wrong?
It strikes me as the wrong question, in part because it's based on a flawed premise. For one thing, we don't yet know the outcome, and if there's a 6-3 ruling upholding the law, many of the analyses of the last week are going to appear rather foolish.
For another, it wasn't just "the left" that expected the justices to reject conservative arguments. Conservative federal judges upheld the health care law before the case reached the Supreme Court; Reagan administration officials saw the dispute as a no-brainer unworthy of the justices' time; and experts, analysts, and former Supreme Court clerks all helped form a consensus within the legal community: it was simply hard to imagine a court majority striking down the law.
The sentence that keeps rattling around in my brain was written by law professor Rick Hasen: "The smart money before the argument was on an 8-1 upholding of Obamacare." A week ago, this was an entirely sensible, mainstream, and widely-accepted observation. Today, it seems outlandish.
The question, then, isn't why did "the left get it so wrong," but rather, why the entire legal community seems so amazed by the apparent trajectory of last week's arguments. It seems to me the predictions going into last week were fine; it was the expectations that were off.
The predictions were based on reliable guide posts: precedent, the facts of the case, the court's traditions and respect for restraint, lower-court rulings, the integrity of the institution, and the justices' avoidance of activism. This is routine whenever the Supreme Court hears a high-profile case -- court watchers consider what these justices have said and done before, and they shape predictions accordingly.
And that's exactly what happened in advance of oral arguments in this case. When analysts expected a 7-2 or 8-1 ruling in support of the administration, they weren't just picking numbers out of thin air; this was a reasonable estimate based on everything we know about the court, the law, and these justices.
So why do the predictions look ridiculous? Because the legal community -- analysts, scholars, journalists, attorneys, former clerks -- appear to have wildly overestimated the extent to which conservative justices give a damn about precedent, the facts of the case, the court's traditions and respect for restraint, lower-court rulings, the integrity of the institution, and the justices' avoidance of activism.
Before last week, objective court watchers could be overheard making comments like, "Sure, there are five conservative justices on the court, but it's not like these are five House Republican freshmen from Alabama. These are serious jurists and honorable men who are acutely aware of their unique responsibilities. It's not like they've gone mad."
After last week, these same objective court watchers can be overheard saying things like, "Maybe they've gone mad."
This reminds me a great deal of the months preceding the debt-ceiling fight. Many political observers, including most of the West Wing, assumed congressional Republicans were conservative, but not dangerous. They wouldn't really attack the full faith and credit of the United States, on purpose, holding the nation hostage as part of some odd ideological crusade.
But the expectations were wrong, and GOP officials were reckless and irresponsible to a nightmarish degree.
The same is true with regards to health care at the Supreme Court. The working assumption was that the officials on the right are very conservative, but still inclined to do the right thing. The oral arguments, like the debt-ceiling fiasco, has forced a reevaluation of these assumptions.
This is a case in which the court majority stands poised to strip the Supreme Court of its legitimacy and credibility (again). Some on the right see this as a development worth bragging about, mocking those who perceived conservative justices as principled professionals.
I respectfully disagree.
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Just saw someone who looked and sounded just like President Obama make the most concise and elegant argrument defending both the constitutionality of the Affordable Care Act and what the statute actually has done and will do. Where has this guy been?
He's been here all along. The problem is, a lot of people stopped paying attention once the 2008 election ended. It still surprises me how many people apparently missed entirely his passionate push to end the Bush tax cuts prior to the 2010 election. Less than a month later, a large portion of the left (not the right!) started re-writing history, claiming that the President hadn't even tried to push Congress to do that.
And that's just one example of many.
Because the right NEVER misses a chance to 'blame' the Left. And yes, I guess they didn't read Fried this weekend. One more time they will screw the American people so they can 'win'...without knowing what WINNING is. But they will have there meme out there. Even if the Supremes rule FOR the ACA they will say 'you won but you didn't win FAIR.'
I will be utterly shocked if the Supreme court votes against the Mandate. Especially when it was already voted on by the Congress and the Senate. They had their chance to vote on amending it and they didn't. The GOP is wasting The Supreme Courts time.
The claim about not amending it was that it was too long and the Senators and Congressmen/women were complaining about not having enough TIME to read it--although this has never stopped them from proposing amendments before. Remember--there WAS an anti-abortion 'amendment' proposed before the final vote. Therefore--as Sen. Shumer stated yesterday 'the parade of horribles' never stopped. IF this is upheld-then there has to be a door-to-door campaign about what the ACA IS and IS NOT. The other side has managed to throw a LOT of pasta at the wall that has stuck and is now part of the argumentation on BOTH sides.
I DO want to say this, in Defense of the argumentation during the 'public' portion of this. FIRST of all, I am willing to bet $10,000 of Mitt Romney's money on the fact that the words 'broccoli', 'cell phone', and 'car' ALL appeared in the OPPOSITION'S briefs. The Justices READ the briefs folks. They ask QUESTIONS based on the briefs. Therefore, all those specious arguments MUST have appeared in the briefs from the opposition. ALL the questioning was based on what was in the briefs folks and I am still not convinced that the Supreme Court wishes to become still MORE 'activist' than it already IS.......Let's just wait (although the wait and suspense are killing me!)
@Jacq- ah yes I remember that. And I kept saying "exactly how the hell is it that you don't have enough time to read a bill when you've spent almost an entire year screaming about how you haven't had time to read the bill? What you were so busy whining about it you never actually got around to doing it?" Glad you brought that back up.
Medicare Plan D which was a republican idea is a mandate. If you do not sign up for it you have to pay a penalty for signing up for it for each year you did not pay into that program. It was a horrible design and many could not afford to buy into the program. There was a provision for those who were under a certain income bracket, but it did does not cover all citizens living below the poverty level. How is this program different from the ACA? If the ACA is challenged as unconstitutional will the Plan D drug program for seniors and those on disability be deemed unconstitutional as well?Maybe. There are plenty of mandates. There's Medicare generally, plus Social Security and unemployment insurance. Everyone who works must pay into those whether they want to or not, whether they ever use them or not. I can easily imagine that this Court would strike down every piece of social legislation that has a mandate attached if they wished to do so.
Sure, Republicans will thump their chest and rejoice in sticking it to President Obama, and the drama-loving Beltway media will love such a story. But after the confetti clears from their political victory, the more important story here is that tens of millions of Americans will be denied access to healthcare.
And from here on out, everytime there is a story of child who died because the parents couldn't afford healthcare or a woman's body is needlessly ravaged by cancer because her insurance provider denied her coverage, the public will be reminded of who attempted to solve the healthcare crisis and who chose to do nothing.
Not to mention that this should put Republicans in bind since they are voting against the very bill they proposed in the 90's.
It's probably worth noting that the mandate in the ACA isn't the only individual mandate we've got. All working people are required to pay into Medicare whether or not they want to, all working people are required to pay into Social Security whether or not they want to, and all working people are required to pay into unemployment insurance whether or not they want to.
So, if the Court strikes down the mandate in the ACA, will they follow their own logic and strike down these other mandates as well? Considering the zealotry shown by the Robert's Court in going way beyond the question brought to them by the Citizens United case, I can easily imagine them doing exactly that and taking out every mandated social program and fulfilling decades of right-wing desire in a single blow.
Exactly , and guess what happens if I get busted trying to scam out of making my medicare payments , I pay a fine for it , the whole argument is worthless , and it is given legitimacy by no one else but the minority of extremist republicans , yet here we are , puke
I guess this is a real test on where the judges loyalties are. Rachel was also making a point about the 5 to 4 vote. The longer this takes the better it looks for Obamacare to stand as it is. I don't know if Judges have anything to do with keeping the peace but, they should think about that also. Americans are not in a very peaceful mood lately. Although the Demonstrations have been.
I'm not sure what you mean by "the longer this takes". Are you maybe under the impression that the Court should have issued a ruling by now and that there's a delay of some sort? If so, I guessed you missed the news that the ruling will be issued some time in June. Or, if you meant something else...never mind!
"...precedent, the facts of the case, the court's traditions and respect for restraint, lower-court rulings, the integrity of the institution, and the justices' avoidance of activism."
All of which went out of the window with the Roberts court! Judicial activism at its worst!
The reference to the 'Cornhusker kickback' was enough to totally astound me. Apparently at least one justice hasn't bothered to even look at the law (or any thing produced by the many law clerks at the court who normally do such things), much less try to apply thought to it.
It's a case of 'don't bother me with the facts, my mind is made up'? Whatever, it's downright scary.
" if this is a 6-3 ruling upholding the law, the analyses of the last week are going to appear rather foolish."
That would be supposing that anyone will remember the analyses of late March in mid to late June.
I get pretty annoyed with predictions, especially ones with built in caveats and contingencies. Kind of like Dewey Wins. I just consider the source sometimes.
I know it is raw meat for some to try to out think every contingency as competitive sport, so they can claim superior minds. Just like the football couch jockeys. But hey, it's a free country, cough…
I think it's helpful to put that positive energy out there. Like what a huge relief it's going to be when we don't have to hear about it anymore from the GOP. And what a great thing it'll be when it's benefits are reaped.
" ...Impenetrable parochialism of American liberals?" Seriously? The Affordable Care Act is about the nationalization of health care. It's the conservatives who want to put health care into the hands of the locals. This is a national problem that needs a national solution. It was the piece meal approach that brought about the health care crisis.
I find the charge of parochialism especially ironic and hypocritical coming from that segment of the political spectrum that views the existence of a world beyond our borders as an intolerable affront. Similarly, they don't seem capable of recognizing the connections between people. I'm so introverted that I'm in danger of falling into my own navel, and yet I'm still capable of seeing beyond my own selfish interests, while those on the right are so terrified that anything that helps another person takes something away from themselves.
America loves sports, where there is a clear winner and loser. Republicans are merely proving this to be true.
Activist judges? Bush v. Gore. 'Nuff said.
Steve Benen: BRILLIANT post.
That adverb is getting stretched out of all recognition.
As it should. :-)
The Supreme Court just ruled that the police have a right to strip search you at any time, for any offense, even if they have no reason to believe that you have contraband on you.
As much as I wanted Health Care Reform, I can see why the Affordable Care Act could be seen as unconstitutional (unlike Single Payer, which would have just been another government service that was provided via tax). But it requires a degree of extrapolation to come to that conclusion. How granting the police the right to strip-search you for any reason is not a direct violation against unreasonable search and seizure is completely beyond me.
Expecting the judges who sit on the Supreme Court to be apolitical is unrealistic, but this is such a gross example of ideology trumping what is clearly spelled out in the constitution that I can't trust the court to do their damn job anymore. The justices are now exactly what they weren't intended to be by the founding fathers: instead of being objective apolitical arbiters of the constitutional legality of laws, the supreme court is now a place to install lifelong political operatives who can't be voted out of office and whose decisions will resonate for generations to come.
Well to be fair Mighty that strip search is to be conducted by correctional officers before admitting you to jail or prison. So this isn't that a police officer detaining you on suspicion of driving drunk can strip-search you. This is that correctional facilities can do as much before admitting you into cells. The argument, as given by the defense, is that they need to engage in this practice in order to protect the safety of other prisoners, the guards, and the additional staff members who work there.
So, answer me this: if the mandate is unconstitutional in that I, as a FREE citizen, cannot be mandated to purchase a product/service from a private company, insurance company, how can I be "mandated" to purchase military products from a private military contractor and pay for military service through my taxes? And, if I don't pay those taxes, fined and worse for my recalcitrance? When will someone here actually take up this question? Where is Rachel on this discussion? Steve, do you have a comment?
Putting a different perspective to a solution is always fun, without intending to sound like a Monday Morning Quarterback, I truly believe President Obama knew his overhaul of the healthcare system would eventually go this route. It is kind of like writing, you have to start, but along the way re-writing becomes the essential to the end result. The President gambled either part or all of the health care plan would be tossed out, in both scenarios he wins; the Supreme Court modifies the plan or it is completely struck down and winds up back in Congress for adjustment. In an presidential election year it puts House Republicans and a hand full of Democrats in an uncomfortable position. The majority of consumers have no problem with health care for all, but the current plan before the court needs serious modifications, including some sort of public option.
Uh - Sam - We don't have a super-majority in the Senate and we don't have the House. Rethugs don't actually have any intention of overhauling the current health-care system. This was the last chance in our lifetimes. It ain't gonna happen again.
Thank you for the post Rachel, I truely hope they make a wise decision because surely there will be consequences to the American people regardless of the ruling.
Rachel ???
Not Rachel, Steve Benen...best blogger in the world*! :-)
Hmm.... So, the will of the people is ultimately a mere illusion, as the final decision rests on the uncensorable whims of only nine appointed individuals that the MAJORITY of people had no hand in seating. Did I get that right? What important detail about democracy am I completely not comprehending here?
Our democracy is couched in the checks and balances of the Constitution. It is the Supreme Court's job to interpret the constitution. No matter how much some would like, we can't pass a law to make everyone in this country go to church, because that would violate the First Amendment. Similarly, we may or may not be able to pass a law forcing everyone to purchase healthcare. In my opinion it should be permitted via the commerce clause, but my opinion doesn't matter. This is Civics 101.
If majority rule we all that mattered, we would still have slavery, no mixed marriages, no civil rights for minorities, women wouldn't vote, etc. Thankfully we don't live in that country.
Only until we get a Supreme Court that allows it.
Sorry keep but I am w/ Joel here. The exact same argument you are giving right now is the argument people keep giving about courts who strike down marriage equality bans. You can't pick and choose. SCOTUS operates independently so that it can make decisions on the basis of the constitution and not on the basis of majority rule. Always remember that rights aren't up for popular vote. On the one hand this is why slavery is no longer legal and why we can have mixed marriages. On the other hand this gave us Citizens United. I'm not saying that SCOTUS is perfect or that I think ACA will be overturned, but I do think ultimately speaking it's the job of the courts to uphold the constitutionality of laws and I do think this is ultimately a good thing for America.
Thank you, D.C. That's precisely the sort of "ruling" I was alluding to. Those nine judges aren't answerable to anyone, and can do as they please. There's something inherently sinister in that arrangement, in my humble opinion.
Me too, democratically elected republic, subject to change, but not on a whim or royal edict.
We can look to many things, abolition of alcohol for instance, but it took 17 (I think) years to overturn that amendment to the Constitution. How many years did it take to make a slave or woman a person and people still dispute what is a person with rights? Unbelievable, but better that having people put to death for speaking against leadership that cannot. be elected out of office. I'm just waiting for the amendment that will give a reasonableness to lifetime appointments in SCOTUS.
But what you are proposing here isn't realistic. If you had to elect judges to SCOTUS and have them be subject to the whim of the public then there is no reason to suppose that they wouldn't have more of a propensity to vote in line w/ what the majority thinks as opposed to protecting rights and the constitution. This was the reason why SCOTUS was appointed an independent body in the first place. There is also the problem that they may refuse to vote on any controversial pieces of legislation because it would make their electability go down and this would then lead to only minor court cases ever reaching the SCOTUS. SCOTUS already has a propensity for this latter element and I think if you made them an elected body you'd only increase this problem.
Term limits sound nice and perhaps to an extent they could be, but what would be a reasonable term limit that would put the SCOTUS outside of the electioneering racket we have now as w/ regards to our Senate and Congress? Congress gets voted every 4 years and Senate every 6 and yet all 4 years and all 6 years Congress is constantly campaigning to be re-elected. Under what precedent are you referring to where you think term limits w/ judges won't ultimately end up the same, especially at the federal level? And what is more- wouldn't this end up just giving over more power to Wall Street and other giant corporations instead of limiting the powers?
Sorry that's 2 years not 4. Was going to include the POTUS in that list and then had a brain fart and crossed the two. Oy Iz gettin' old ;-)
I wouldn't want them to be elected, but I think there should be a better method to impeach them when they decide to accept a case that determines who is the President. That to me, was a no brainer. Activism.
Truthfully, I do not know by whom the SCOTUS would be held accountable, though. They just get nominated, advise and consent and they are in.
Oh yes granted Sandy. I'm not pretending like the court hasn't became ridiculously more active since Bush vs. Gore nor am I defending Bush vs. Gore or Citizens United. I don't agree w/ them. My point was that I don't think electing them is necessarily a good idea. Term limits may be a good idea, but I don't know what you'd set? Most of the justices- when they become SCOTUS justices- are already in their 50's or 60's. So a 20 year appointment may make sense. But this would mean them serving still, primarily, a life term (that'd mean someone would be serving from 60-80, as an example, which would pretty much be when he'd retire anyways). So I'm not sure that'd be better. Perhaps we need to have better oversight powers w/in the US Congress?
Yes, your points are well taken. Some folks already think the court overreach when they rule that all people have rights. They feel the court is wrong when the law they vote in limits rights without due cause.
There does need to be some real, well versed, long time Justices and with my reading of the Constitution, it seems that behavior is the way to impeach Justices. I would be in favor of a 20 year term, but I was appalled that they delved into a state election, rather than deferring to the State court for their election.
But I am not sure how they arrived at the decision to take Bush v Gore, except some kind of feeling that Bush was ordained or destined.
http://wiki.answers.com/Q/Can_a_US_Supreme_Court_justice_be_impeached_and_removed_from_office
If the "Affordable Healthcare Act" is ruled Unconstitutional I can't wait to see Newt (but I am relevant & poor kids should clean toilets) Gingrich call a press book signing press conference to say "These Activist Judges on the SCOTUS should be called out
All this is a big show for the GOP. More fear tactics. To overturn the Act would be so inconsistent with prior decisions. Let's get out of this political diversion and get back to work on real problems.
We are supposed to be safe from illegal searches and seizures. What are the bill of rights for if the supremes can trample them? Let them be impeached!
I keep hearing about how a ruling striking down the ACA will have a negative impact on the credibility of the SCOTUS.
So what? This is a constitutional institution, and whether it's "credible" or not has no bearing on things. It's there. We have to live with what they decide. What does credibility have to do with anything, and why in the end should the justices care about it? They certainly don't appear to be concerned with their own personal reputations, if Bush v. Gore and Citizens United are anything to go by, so why should the credibility of the court as a whole matter a whit to them?
Remember that the Supreme Court doesn't have an enforcement arm. There have been several times in our history where their rulings were completely ignored -- Andrew Jackson and the native American tribes comes to mind. If they have no credibility it's all to easy to get back to that time.
Is that a realistic outcome, though? In this political atmosphere? I'm thinking no.
The Media predicting the out come of the supreme court ruling is just like the speculators predicting the price of oil down the road, if you say it long enough it will happen,
Thomas has already destroyed his reputation. Scalia is not far behind him. After Scalia's ruling on marijuana if he votes against ACA he will equal Thomas in a complete lack of respectability.
Let's review:Republicans said they could support a health care plan that was paid for Democrats provided one .Republicans said what they meant was they could support it if it used the conservative Heritage Foundations manner of paying for it , Democrats complied and suddenly mandates=socialism.Republicans whined "If only these mandates could be paid to private companies we could support this." Poof Democrats made it so. Poof Republican support for the bill disappeared.At every step the Democrats have made this as palatable for Republicans as possible and the end result is a bill which 26 attorney generals, all Republicans,took to the Supreme Court because it was paid for in the manner they had recommended.
One more time. Nobody important, especially liberals/progressives, understands the ruthlessness with which the right is determined to take the country back to the 18th century. Say goodbye to the country you grew up in. Liberal spinelessness and unwillingness to fight fire with fire has brought us to this. And it's going to happen.