Ah, health care reform and the courts. I'll direct everyone interested to a great round-up of opinions and links Ezra Klein has in Wonkbook this morning. Also, Jonathan Cohn has (as you would expect) several good posts up. I haven't read the decision myself, so I'm not going to comment on it directly.
I'm not reading it mainly because I don't think Vinson's decision changes anything -- as I said that the previous decision by Judge Hudson didn't change anything, and the two decisions by Democratic judges to uphold ACA didn't change anything. The Supreme Court can take whatever cases it wants, and it can (as the Court showed in Citizens United) rule as broadly as it wants, regardless of what lower courts have done.
Moreover, the problem for conservatives on the Court remains the same. Do they really want to return to a pre-New Deal understand of the Constitution, with all that it implies? And if so, do they really want to do that with a slim 5-4 majority? Or, if they don't want to do that, or at least not now, or not through this case, can they find a way to knock out ACA without also killing off all the things that Americans have expected their government to do for the last 75+ years?
Everyone's shorthand for this is to ask how Justice Kennedy would answer these questions, and that's certainly a good way to think about it -- but at least in my opinion, it's not at all clear how Roberts and Alito would want to handle the problem, either. Indeed, it's not at all clear, in my opinion, how Republican politicians would like this handled. Ezra Klein talks about a possible mobilizing effect for the Democrats if the Court throws out the ACA, and that could be true. Think of it, however, in the other direction: what if the Court rules 5-4 in favor of the law, with a scathing Tea Party laden dissent from Scalia? Wouldn't that have at least as much of a mobilizing effect for the Republicans?
Now, granted, it's very easy to overstate such effects, although to be sure we've never had anything comparable to the more sweeping versions of what the Court could do. Still, it is worth thinking about: if we're to see the Court as primarily partisan, do we expect them to attempt to achieve partisan policy goals -- or to help the party win elections? At least in this case -- but also, for example, in abortion, and probably in several other high-profile issues -- there's an argument to be made that those two things push partisans on the Court in different directions.
Tuesday, February 1, 2011
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"if we're to see the Court as primarily partisan, do we expect them to attempt to achieve partisan policy goals -- or to help the party win elections?"
ReplyDeleteDo you suppose the majority (and their successors) from Bush v Gore regret the effect of putting an inattentive anti-intellectual in the White House? If they are deciding in 2012 may it not depend on who is, or looks likely to be, the Republican nominee as to how much weight to give to your alternatives?
Do they really want to return to a pre-New Deal understanding of the Constitution, with all that it implies?
ReplyDeleteRoberts, the most reliable pro-business justice in seventy years is going to walk away from an opportunity to cut the modern regulatory state off at the knees?
This is the moment he was born for.
Why assume that Scalia would overturn ACA, given his concurrence in Gonzalez v. Raich, in which he wrote expressly to emphasize that, "[w]here necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce"?
ReplyDeleteIf we are to see the Court as primarily partisan, we could expect them to attempt to achieve partisan policy goals, or to help the party win elections. In abortion lets say, and probably in other issues, there is an argument to be made that those two things push partisans on the Court in different directions.
ReplyDelete