Friday, May 18, 2012

Q Day 9: SCOTUS?

Ron E. asks:
If the Supreme Court strikes down the ACA by a 5-4 partisan majority based on weak arguments about inactivity or the slippery slope to forced broccoli-eating, does that indicate there are fundamental problems with our court system? And if so, what kinds of reforms should we implement in response (term limits and/or age limits? limiting judicial review?, others?)?
No, I don't think it's a problem with the court system; I think it's a problem with the Republican Party.

By the way: my position on this is that there is a clear and consistent reading of the Constitution that can knock out the ACA...but only by rolling back huge chunks of the New Deal and subsequent government. I disagree with that reading, quite strongly, but I don't think it's inconsistent. On the other hand, I do think that a broccoli decision would be just strictly partisanship, an attempt to find some fig leaf to hang a pre-ordained opinion. Or, perhaps worse, an indication that the conservative Supremes are just as locked into a talk-radio driven feedback loop as any yahoo out there during afternoon rush hour.

But, yeah, I don't think it calls for institutional reform, at least not of the courts.


And with that...I think I'm done for now. I may try to get another question or two over the weekend, but I suspect not, so my apologies for those I didn't answer. And thanks to everyone for the really fun questions.


  1. Aw, and here I didn't get around to asking my question: Do you think Tim Lincecum is through?

  2. can you foliow up a little on this answer? I only ask because you 1) open the possibility that the conservatives on the Court are as well informed as an angry dude in rush hour traffic and 2) suggest that they might roll back "huge chunks of the New Deal" in order to get rid of ACA. That all sounds like a very big deal...

    1. It's a big deal (if it turns out to be that way; we don't know that yet), but it's not a Court problem. It's a broken GOP problem.

    2. I would agree it's a GOP problem if voters had the chance to vote out Scalia, Thomas, Alito, Roberts, and Kennedy. But since they are on the court for life, it seems like a more structural solution is necessary unless we're just supposed to live with a 19th century system of government for a few decades until Democratic Presidents have made enough appointments to create a liberal majority on the court.

  3. I agree that it's not a big on the scale of fundamental problems with the system. I think Bush v Gore would indicate that more than even the ridiculous broccoli argument. And I say that because I don't think they would roll back huge chunks of the New Deal. Somehow I think they will make a crappy argument (probably inactivity with only some broccoli) and limit it to the mandate while keep most of the New Deal.

    I don't think you can get rid of partisanship on the court. It's just part of human nature. I agree again with Jon that it's more about level of partisanship of modern conservatives than a fundamental and inherent problem with the court.

  4. Jonathan Bernstein,

    Who do you read or talk to making this case?

    "By the way: my position on this is that there is a clear and consistent reading of the Constitution that can knock out the ACA...but only by rolling back huge chunks of the New Deal and subsequent government."

  5. I think there is no doubt that there are many Club for Growth types who would like to use the ACA case to roll back the last 70 years of Commerce Clause jurisprudence -- just as they wanted to do with Gonzales v Raich, the medical marijuana case.

    But, it seems to me that it is very easy to strike down the individual mandate without touching earlier cases -- simply rule that the Commerce power only extends to regulation of those who voluntarily enter commerce. (Yes, I know that argument that young healthy folks who decline to buy health insurance are "participating in the market," but the Court could reject that argument without undermining civil rights laws, pollution laws, wage and hour laws, and all other Commerce Clause legislation).

    After all, isn't that what Justice Kennedy was implying when he said at oral argument, "Assume for the moment that this is unprecedented, this is a step beyond what our cases have allowed, the affirmative duty to act to go into commerce"?


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