In a 5-4 ruling, the U.S. Supreme Court upheld the constitutionality of the Affordable Care Act. But as the political, legal, and policy world scrutinizes the details of today's ruling, it's worth pausing to appreciate just how far the four dissenters -- who filed their dissent jointly -- were willing to go.
The conventional wisdom, which was neither conventional nor wise, was that the individual mandate was in deep trouble, but it was unrealistic to think the justices would be so radical as to kill every letter of every word of every page of the law. Such a breathtaking move would simply be unnecessarily radical.
And yet, as of this morning, four justices -- Alito, Kennedy, Scalia, and Thomas -- insisted on doing exactly that. The four dissenters demanded that the Supreme Court effectively throw out the entirety of the law -- the mandate, the consumer protections, the tax cuts, the subsidies, the benefits, everything.
To reach this conclusion, these four not only had to reject a century of Commerce Clause jurisprudence, they also had ignore the Necessary and Proper clause, and Congress' taxation power. I can't read Chief Justice John Roberts' mind, but it wouldn't surprise me if the extremism of the four dissenters effectively forced him to break ranks -- had Kennedy been willing to strike down the mandate while leaving the rest of the law intact, this may well have been a 5-4 ruling the other way.
Roberts' motivations notwithstanding, it's important that Americans understand that there are now four justices on the Supreme Court who effectively want to overturn the 20th century. Based on the flimsiest of arguments, the four dissenters want to kill progressive legislation basically because their political ideologies tell them to do so.
There are some who argue that this year's presidential election isn't especially important. I hope those who believe this consider what today's court minority was prepared to do, and what they will do with just one more vote.
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I have not read the whole dissent, but when it starts with phrases like "tax and spend," "massive state-administered federal welfare program;" when you say that Congress needs to come up with a more "sensible" health care solution; it's easy to see the dissent as purely political. It seemed like they were giving their own personal opinion on the law, not a legal argument against it. It's really quite sad that they weren't able to come up with something more legally coherent.
They don't have anything legally coherent when they win, it's surprising it's even typewritten when they lose.
I'm pretty sure the screen of the computer it was typed on is spittle-covered from Scalia's frothing.
I wonder if at least part of Roberts' motives were that he is becoming alarmed by Scalia's increasingly shrill partisan rhetoric. Roberts is no liberal, or even moderate, but maybe he realizes that an unhinged Scalia will be very bad publicity for conservatives.
Sad when someone as conservative as Roberts has to balance Scalia's rants. This is what happens when extreme ideology becomes a ruling force in a party.
Idiot you just gave them the Power to TAX you into ANYTHING! ..To Tax any behavior instead of just taxing a percentage of your income ... Its amazing to see how the Far Left NAZIonal-Socialist Collectivists will give up the power of running their own lives to fat cat Left Wing Special Interesr corporatists in Washington DC ........... Because that's all who won in this judgement (Big Pharma)
LOL seriously? You do realize that this was originally a right wing idea right? Also, just because the Nazis had the word "socialist" in their name doesn'e mean they were actually socialists. The idea that the Nazis were left wing is retarded. I don't much like that word but I don't think there is another word that more accurately describes the situation. This whole idea that the sky is falling because we will all be coerced into purchasing health insurance shows how limited your ability to think is. Deal with reality righties and that reality is that the world is changing for the better and you are fighting it the entire way.
Absolutely, the most on-point comment I have heard/read today. Four judges are willing to throw out all that we take for granted -- as people who grew up in the 20th century. This election is ALL about who will serve on the Supreme Court. Let's get out the vote people!
This is going to be particularly important should any administration ever decide to deal with climate change, since it is going to require some pretty massive economic shifts to accomplish.
No one should ever put "Justice Kennedy" and "moderate" in the same sentence. These four have effectively demonstrated that politics rules the game for them, not the law.
America barely dodged a bullet aimed right between its eyes.
I remember the 2000 and 2004 elections thinking the most important consequences of those elections were the potential effect on the Supreme Court. Imagine a Romney win in 2012 and another Thomas, Alito, Kennedy, Scalia, or Roberts on the Court.
Disaster!
The entire issue of this constitutionality decision was not one of politics; and I resent the divisiveness present here. Scalia, Thomas and the other dissenting justices were by no means motivated by radicalism, and neither were their motives somehow political in comparison- rather they were emphasized with a legitimate viewpoint about the entire act.
Stating this is radical in itself ignores a long line of jurisprudence. It is not radical of the court to strike down a law, and neither should that be confused (hypothetically) with a political statement. That is what ignores the purpose of the Supreme Court itself.
Wrong! If you knew anything whatsoever about the Supreme Court you would know that, although they do not admit it, the majority of the votes cast are ideological in nature. This has been illistrated over and over again. The justices do not admit it and even go so far as to try to hide the fact but it is a fact. This case is even more obvious than most and if you can't see that then you are hopeless.
Romney is on the air right now, making stuff up again. Where's today's more mendacity from mitt. blah, blah, blah, blah
Yup. In ten minutes Romney gave Steve Benen enough material for an entire volume of the Mendacity Chronicles.
Romney's blithering about losing your current doctor and having government decide your personal care. wth is he talking about?
Does Romney ever know what he is talking about? A liar knows the truth and chooses the lie. A b.s.er doesn't care what's true or false, he's just making it up as he goes along.
As Steve says, if today doesn't prove why this Mormon moron needs to be defeated, nothing will.
Oh. Yeah. Romney. The guy who put the same system in place in Massachusetts, and everyone here is happy about it. That Romney...
Kathy 531928 - what is he EVER talking about?
Kris...,
It usually boils down to "I'm entitled, vote for me!"
He could be talking about all the Republican legislation in the states aimed at restricting and controlling what medical care women are allowed to have, but I don't give him credit for that much awareness.
No, he's simply repeating the already-debunked GOP talking point that ACA is a complete government takeover of the health care industry. By repeating that people will be forced to change doctors and health insurance providers, which is an outright lie, Mr. Romney is counting on fooling a lot of uninformed voters who won't bother to fact-check him. He is assisted by a major cable "news" source that is also deliberately reporting these lies as if they were facts. It's straight out of Karl Rove's playbook: if you repeat a lie often enough, it will eventually be perceived as true.
Sarcasm fail. ;)
As a person with brain cancer, I am so completely repulsed by Mitt Romney and what he is saying right now on the air. Obama get out there and take this jerk apart -- incredibly stupid point after point that he is making.
jend - I'm sorry to hear of your diagnosis. Cancer has taken a terrible toll in my own family, as in so many others, but it can be beaten! (My own mother was told in the mid 1970's that her cancer left her only weeks to live. Happily, my father managed to resist the explicit urge to punch him, and my mother ultimately outlived that doctor by nearly 30 years.) I hope that you and your health-care providers can find the strength and the way and the means to prevail... best of luck.
hope you beat it
and we beat the Repubs in Nov.!
Great post, Steve!
Sadly, and to our discredit, progressives aren't nearly as attentive to the courts as we should be. The right has been working to make the courts an extension of the Republican Party (i.e., corporations) for decades, and as we've seen, they've succeeded.
We'd better wake up, fight back, and be ready to continue to fight for decades to save our courts. Otherwise...
The dissenters seem to want the country to rush into the 19th entury.
I wouldn't give them that much credit...it's more like the 16th century. ;)
I knew Scalia and Thomas would be completely against it, considering how actively they were being lobbied. So glad that it stands, though. I'd hate to lose my coverage while still recovering from surgery that I was only able to get thanks to the healthcare reform.
Coverage? ever heard of medicaid? ???
tired of these lies on NAZIonlized Obamacare covers those who aren't insured IT DOESNT/less people are insured today them 5 years ago ... ALL it does it put more TAX PAYER MONEY into the pockets of DRUG LOBBY'S (THAT'S IT)
Wow you are seriously out of it. I find it hard to believe that there are less people insured today than 2 years ago considering the fact that the roles were expanded to include children up to 26 on their parent's plan. Also, you do know the rest of the law has yet to come into effect right? Geez, you righties are just dumber than sand and paranoid to boot.
I tried to listen to Romney's comments. But, I have a BS filter installed on my television now...so, the broadcast was mute.
i tried too...couldn't stomach his lies
I live in MA he was my gov when he passed Romneycare...so I hear anything he said today in that context.
he lied outright also.
I felt hateful so I turned him off. God help me if he wins...hard to take more of his mendacity
to us in MA his deep hypocracy with almost every word he utters causes nausea...
The 4 dissenters behave as though they're auditioning for a show on Fox or AM radio.
One could only hope that they might be offered contracts too lucrative to resist, so long as President Obama is available to pick their replacements...
;-)
CAF - Those four "justices" act more like they are auditioning for Judge Judy's sidekick!
I did skim over the dissent. I see that the dissent cites the Federalist Papers frequently, and even cites 18th century dictionaries (including those of Noah Webster himself and Samuel Johnson).
The dictionaries are cited to verify what the Founders thought the word "regulate" meant. The conservative justices write: "We do not doubt that the buying and selling of health insurance contracts is commerce generally subject to federal regulation. But when Congress provides that (nearly) all citizens must buy an insurance contract, it goes beyond 'adjust[ing] by rule or method,' Johnson, supra, or 'direct[ing] according to rule,' Ash, supra; it directs the creation of commerce." The names "Johnson" and "Ash" refer to dictionaries.
Citing Noah Webster as an authority?? (In fairness, the dissent also cites Gibbons v. Ogden, 1824.)
I'll have to read the opinion more carefully when I have more time. Right now, the decision strikes me as a Solomonic split-the-baby farrago. But at least, the ACA has survived.
Funny, in his opinion overturning the DC handgun ban, he didn't stick with an 18th century dictionary for the word "arms"...
imglad for the president it was up held. and as for sen mcconnell who wants him out i he is with romney wiping the tears with the millions they lost. go Obama lets bring the real America back
" four justices on the Supreme Court who effectively want to overturn the 20th century" Overthrowing the last 50 years may not be a bad idea. Atleast do away with most of the Supreme Courts inferior opinions. Helping people is good, kissing their backside is not.
Somehow I thought that the Supremes were supposed to be apolitical and judge cases on the merits and on the law...silly me.
Which should be proof of the failure of progressives and liberals. Republicans have been working night and day for this for the past 52 years, ever since the right took over the party to promote Goldwater. The defeat in 1964 didn't stop them, they kept right on. I know YAF types from back then who have been politically engaged every year ever since. Sadly, there are few on the left for which that can be said. The left gets interested every four years, then goes back to sitting around with its head up its assets. Until we are ready to work as hard as the enemy does, they are going to continue to win.
And the 5-4 majority that would have killed this decision on commerce clause grounds proves that they sit there ready to do it in the future.
They're SUPPOSED to be apolitical, but clearly certain members of the High Bench (Clarence Thomas, for one) can be bought by special interests. Remember some months ago when Rachel (and I think Keith) reported on Clarence and Ginny Thomas attending a Koch Brothers event, as guests of the organizers, all expenses fully paid? Isn't there some sort of law prohibiting Federal Employees from accepting expensive or extravagant gifts or inducements?
Ms. Penny: If there was such a law, there would be no lobbyists. However, there are ethics standards for federal judges, one of which being to avoid even the appearance of bias. However, for reasons I am not quite sure of, USSC Justices are (or believe themselves to be) exempt from those rules.
We have all expected that they are above politics and bribery. However, Justice Thomas and his wife, the Tea Party Queen, have been going to political meetings, accepting money for going, and acting as if everything is just fine and dandy. He should have recused himself from the vote. But I knew he was no good when I was watching the Anita Hill hearings.
This is a vote for the people and against the Second Golden Age. Historic.
Gilded Age. A Golden Age would be a good thing. Otherwise, I agree.
I don't care what his motivations are -- I tip my hat to justice Roberts.
Me, too!
He couldn't be bribed!!! Who knew...
apparently he's one Republican that still puts country before party and ideology.
What a relief
saved the SC from becoming a joke even more
"Roberts' motivations notwithstanding, it's important that Americans understand that there are now four justices on the Supreme Court who effectively want to overturn the 20th century. Based on the flimsiest of arguments, the four dissenters want to kill progressive legislation basically because their political ideologies tell them to do so."
My cousin, FDR, is already rolling over in his grave. Where do we go to educate people about what this country was like before the progressive movement? We have to spell it out before it is all repealed and unknowing people find out the hard way!
Today's action was indeed a surprise - especially Roberts' move to the left, for whatever reason - and what a welcome bit of good news it was! Here in Wisconsin, many of us have been suffering from political-depression after we failed to recall the loathsome Governor Walker. I was feeling as though my country was off track and careening toward some wormhole to the past. Today five Justices did their job and I couldn't be happier.
I'm not sure that I would count on Chief Roberts moving to the left, but sure does look like he at least leaned left for this decision.
I was disgusted from afar (Oregon) that Scott Walker did what he did, and that he survived the recall efforts of the Good People of Wisconsin.
You could argue that Roberts did what he had to do to save the Republican Party.
The absolute heinous LIES put forth by the SCOTUS Four, and parroted by that lie-o-matic Romney, are enough to make a buzzard puke. The hateful venom spewed by the Right is purely race-based, nothing more. No substance, only fantasy-based bullet point comments....
They want nothing more than to bring about "Apocalypse in America", which they believe their money and 'friends' will insulate them from.
TALK ABOUT LIES?? https://www.facebook.com/RightChange
seems like the Fab Four were really upset on missing out on their Koch bonus!
Seems the dissenting four, one of whom has a wife who gets paid to lobby against any healtcare improvements, want to throw out the last 50 years, but NOT Citizens' United, the most dangerous and damaging anti-American legislation in 150 years.
I see all the liberal trash in here thinking it ok for the government to think for you make you do things that you shouldnt have to. Ty you undereducated democrats for your idiocracy. You have taken this country back 50 yrs plus. People like me that have worked since they were 14 do not want to flip the bill for all you lazy asses that couldnt take care of yourselves, yes cancer happens but we have handled this fine, but all you want handouts, you want redistribution of the wealth so you can sit on your ass. Read this damn Bill and read the whole 400 page bill it is going to kill USA and yes it will read the damn thing before you run your mouth to this post, because democrats only go with whats popular or FREE. LEARn to educate your self you dont need government we need Americans again real hard working Americans not a bunch of pussies!!!!!
I may be "undereducated", but I'm educated enough to be able to write a flipping sentence in English.
Somebody's a little cranky about the decision.
Go to hell you worthless piece of something I scrape off my shoe.
I hope you're joking. If a tax credit for buying a solar panel isn't "making you do something", then a tax penalty for not buying health insurance isn't either.
We've handled cancer well? Really?
No one is looking for handouts. This is about making people buy into insurance when they are healthy so that when they get sick they've been contributing to the system the whole time, not just when they get sick.
Go take a look at dear Aaron's profile picture. Tells me all I need to know about the quality of his opinion, even despite the dense fog of bad grammar and faulty grasp of liberal thought in this country. Aaron - I doubt you read the 400 pages of the bill. There were no pictures in it.
Liberal trash, aka hard working Americans who have a sense of humanity and aren't name calling projectionists with no sense of the present, and no future in functional democracy.
So we liberals have "taken back the country" by about 50 years? That may not necessarily be a bad thing. In the 1960s, we had full employment and a much fairer distribution of wealth than we have today. In the 1960s, the economy was so strong that experts predicted that we would be making tons of money while working as little as two days a week. In the 1960s, we finally gave African-Americans full human rights. In the 1960s, the Warren court expanded our civil rights. You could even make the argument that the great campaigns for women's rights and gay rights were nurtured in the 1960s, although they did not bear fruit until the 1970s. In sum, going back in time to the 1960s has its virtues.
Aaron, if you can think your way out of expensive medical bills, then more power to you. Most of us can't, and by creating a system of insurance, where everyone pays and everyone benefits, we all have better healthcare.
But hey, if you'd rather go bankrupt when you get cancer, than have insurance, then again, more power to you. Good luck. But who pays when you do? Who pays when you can't pay the hospital bills? The rest of us do.
Welcome to the 20th century a century late, USA. You're the only major country that up to now didn't have a decent health-care system.
I believe what Aaron is trying to say is that he is against taking responsibility for yourself (buying insurance) and for being a freeloader (no insurance, being treated at the ER and skating). Or he really hates early 90s Republican healthcare legislation. Either way, he seems to live for long debunked stereotypes about liberals as freeloaders. In any case, this is why we bother to look into things, why we get education, why we gain knowledge - to not turn out like Aaron. And the bill isn't 400 pages long, by the way.
1. you are already footing the bill for uninsured americans, who can get emergency medical care and then not pay (and what they charge the uninsured is something like 3 times what they charge an insurance company, so we get stuck for MORE than we would if we just paid for the insurance bill). What this bill does is stop you from having to pay for people who can actually afford to take care of themselves but choose not to. Aren't you happy about that?
2. you are perpetuating an immoral system when you allow insurance companies to decide who gets to have access to affordable care and who doesn't, and you're keeping our country in the dark ages when you allow for such vast disparities in preventative care (which again, if things are left untreated they get MORE expensive as they progress, and THEN we still get stuck with the bill. Much cheaper for the taxpayer to simply pay for insurance).
3. since there is no government involvement in the insurance market beyond setting it up and saying "this is what qualifies as an insurance product for this market" any thoughts that this law will "kill" any freedoms endemic to our capitalist system is pure right wing hogwash.
in short, lay off the FOX sauce
You aren't the only one in the world that has worked since they were 14. There are a lot of us that are doing quite well, thank you, and are willing to help out those less fortunate, who cannot do for themselves as well as you or me. Nobody is wanting a hand out. I don't know your religious persuasion, but I choose to do what is expected of a Christian in this country and care for the young, the very old and the sick. If you don't like that, then don't do it. Sit in your little castle all alone and unhappy. either that, or get out and try to help someone else improve their life. It'd make you a much happier individual.
Huh, a Conservative brain remained un-exploded. Then again, it's hard to explode what clearly wasn't there to begin with...
So, according to Romney and Bachman et al, the sky is falling, the sky is falling!
My daughter got to see her speak this morning. She's had the amazing luck of being in Washington on this historic day. She stood outside the Court buildings as people came rushing out with the decisions, and then got to hear Michelle Bachmann spout her nonsense.
My kid is very lucky!
If Roberts had swung towards the minority decision, we would have been staring at a green light to overturn:
"Radical" isn't the word. This would have been more radical than almost anyone but Ron Paul could stomach. The voting backlash this November would have been epic -- and the Supreme Court would have lost any credibility it might still have as a nonpartisan body.
Roberts' decision was, simply, to save the Court and the Republican Party from his own radicals. A purely political decision.
Credit, by the way, to Robert Reich. He called this one.
Agree with everything you said. But I think Robert Reich was off a little. He thought it would be a 6-3 decision, with Kennedy voting with Roberts. Kennedy is not a moderate, as so many seem to give him credit for. When was the last time he broke ranks with Scalia, Alito, and Thomas?
And we should! we have far too many government policies intruding into our lives LESS GOVERNMENT = HAPPIER ELECTORATE.
This will happen anyway if Romney is elected!!
This will be the least of it, actually. Ginsberg isn't exactly getting any younger, or healthier. I really, profoundly, can not see her surviving another eight-plus years, so the next President will almost certainly name at least one USSC Justice. About the best we can realistically hope for is that it will be Obama naming another moderate, much as the two he has already named, to replace Ginsberg (the last remotely liberal Justice standing.)
There's an outside chance that Scalia will leave the Court in the next four years, most likely feet-first, and a really small chance that Kennedy or Thomas will have a surprise illness (Thomas doesn't look healthy to me, but that's a bad bet.) Roberts and Alito are young and USSC Justices tend to be long-lived, plus all of the right wing have a powerful incentive to last at least until the next Republican President.
Which we will almost certainly have by 2017 at the latest, given that Biden has the inside track on the nomination and very poor odds of winning even a fair race -- which, with Citizens United, is not likely. At that point a strategic retirement by the older right-wingers will allow some 30-something graduates of Liberty University Law School to take their seats for the next forty or fifty years.
Bottom line: the chances of the right wing partisan faction on the Court losing their majority within my lifetime is very small, and there's a very good chance of them gaining a supermajority that will most likely outlast my children as well.
still, I am relieved Roberts is thinking of his legacy and that of his SC. His vote this way should ram home for anyone that Obamacare is legal and that those four are political reactionaries...
because Roberts himself is no moderate.
This is why every presidential election is important. The Bushs packed the court with right wingers, all the while complaining that Clinton did the same.
If Romney gets elected there will me more judges to appoint. The court iwll be set for the next 25 years. Our country can not withstand such a drastic move to the right.
Thomas should have been tossed out on his ear at his confirmation... this court is no longer an impartial arbiter of law, it's a political wing of the Republican party.
Roberts did the one thing that saved its asses from massive outrage.
It seems only the "Liberal" judges on this court have the decency to recuse themselves when they see either a real or a perceived conflict. Why did Thomas not recuse himself based on his wife's immediate benefit from this decision? Why did Scalia not recuse himself for being a Republican shill?
I find it interesting that those leaving all of these comments about how political the "Right Four" are and ignoring the fact the the "Left Four " are as political and not willing to break ranks any faster than the others. I guess when the decision is in favor of the Left it is prudent. When it favors the right it is destructive. Most Americans are tired of the extremes on both sides. Part of the Bench is in the Progressive pocket of the very Liberal as much as you seem to think that the other Four are in the pocket of the Republican party.
Both sides do it! Both sides do it! Both sides do it!
No, they don't. Get a new routine.
Roberts punted the issue to the Congress and electoral process. I would suspect that Roberts was looking at public opinion polls about the court, the opinion polls within the legal community as reflected in law review articles, the rising tide of people in Congress who are looking at the conduct of Thomas and Scalia with respect to the health care law as a justification for imposing ethics rules on the SCOTUS, the politicization of the court by conservatives and progressives and, the Roberts legacy in legal history. The apparent conflicts of interest with Thomas and Scalia could have been an election issue allowing Obama to tie the court to the radical Republicans. I believe that the ethics issue will still be a major point of contention even though the law was upheld. Those conflicts of interest will be a major issue in the legal community and possibly Congress if the Dems control either House. That is the most pressing issue for Roberts as Chief Judge because he will have to defend those two judges in both venues. He can blunt the criticism, but the ethics issue is not going away.
i hope you are right but sadly I do not think most Americans are informed about Thomas and Scalia's slimy ethics
I have Dem friends who only vaguely know and forget which who what
you are well informed pehaps forget how little of their shameful behaviour is reported in mainstream press