Tuesday, December 14, 2010

The Hudson Decision

I was going to write a post arguing that the court decision on ACA yesterday really didn't matter at all -- because we already knew that this thing eventually winds up in the Supreme Court, and what happens below won't really affect the outcome there.  However, Adam Serwer beat me to it, so I'll mostly just send you there instead.  I'm not sure I agree with him that the best way to think of Scalia-Thomas-Roberts-Alito is as simple partisans; I think there's a bit more going on than that.  But I don't think it matters a whole lot what the lower courts do. 

As far as the eventual resolution of the case, I continue to think that it's tied in to a larger question, which is whether the conservatives on the Court really want to disrupt the basic governing arrangements that Americans have made since the 1930s, as opposed to just tinkering around the edges, or as opposed to just tilting the playing field within those arrangements.  If not -- or if they just don't have the votes for it at this point -- then I suspect they'll find it hard to knock out the ACA, or even just the individual mandate, without threatening the larger upheaval.  I don't see how they could do another "ignore this case" decision, although I suppose I didn't expect an "ignore this case" decision ten years ago when they tried it, so you never know.  At any rate, I'm pretty confident that Serwer is correct about the lack of importance of these preliminary decisions, on either side.

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