The system shook, but stood: the ObamaCare decision

You know, part of my joy today is about the Supreme Court's decision on the Affordable Care Act -- but I think its deeper than that. 


Its rooted in my sense that the legitimacy of a core American institution (the Court) wavered, even shook, but ultimately remained in place. 


I remember the acid in my stomach after the Bush v. Gore decision, and anticipated having the same feeling this morning. The nihilism that American conservatism seems to have adopted seems bent on devouring standards, institutions and processes that have served this country well for a very long time -- like some sort of civic auto-immune disease. 


As James Fallows recently wrote, "liberal democracies depend on rules, but also on norms -- on the assumption that you'll go so far, but no further, to advance your political ends. The norms imply some loyalty to the system as a whole that outweighs your immediate partisan interests."

It was out of such loyalty that Gore stepped aside after the Court stopped the vote count in 2000, as much as many of us wanted him to fight.  It was in violation of that loyalty that the Bush campaign sought to stop the vote count, and in violation of that loyalty that the Supreme Court's narrow majority upheld Bush's strategy.

It was in support of that loyalty that Chief Justice John Roberts, however reluctantly, ruled today. Perhaps there still are a few true conservatives left among the bomb-throwing crazies, who would undo in the name of patriotism all that makes that patriotism morally justifiable.

Sir Thomas More, as quoted in "A Man for All Seasons":

"And when the last law was down, and the Devil turned 'round on you, where would you hide, ...the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down..., do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!"

America joins the ranks of civilized nations!

Victory!  I'd like to take this time to welcome my country to the 20th century, and offer a brief shout out to Franklin Roosevelt, Harry Truman, and every great American who has fought for universal healthcare as a human right.


And thanks, most important, to President Obama -- who saw this once-in-a-lifetime opportunity, and grabbed it!

A love song for Anthony Kennedy

I just met you, and this is crazy, but here's ObamaCare -- uphold it baby!


[A revision:  Kennedy you two-timing so and so, this is for John Roberts instead.]

Twiddling my thumbs while waiting for modern liberalism to die

Bloomburg news surveyed 21 top constitutional law professors about the impending Supreme Court decision on the Affordable Care Act.  19 of them said that if the court follows legal precedent, it (the individual mandate) will be upheld.


“The precedent makes this a very easy case,” said Christina Whitman, a University of Michigan law professor. “But the oral argument indicated that the more conservative justices are striving to find a way to strike down the mandate.”


Only 8 of the 21 legal scholars actually expect the mandate to be upheld, despite the clear direction of constitutional precedent.


What does this tell us about the conservative majority on the Court?  And the old right-wing saw about liberal activist judges?


18 of the 21 agreed that if the individual mandate is overturned on a 5-4 vote, it will damage the credibility of the Court itself.  


“When you take the fact of a high-profile, enormously controversial and politically salient case -- to have it decided by the narrowest majority with a party-line split looks very bad, it looks like the court is simply an arm of one political party,” University of Chicago Law Professor Dennis Hutchinson said in an interview.


However, I'm not going to despair yet, at 9:23am on Monday June 25th (an announcement could come as soon as 10am).  Liberal constitutional lion Bruce Ackerman still believes that conservatives Roberts and Kennedy won't be able to pull the trigger:  “I continue to find it extremely unlikely that Justices Roberts and Kennedy will support a 5-4 decision that has such an insubstantial basis in 75 years of Supreme Court case law."


Ackerman, alas, was the only respondent who said the court is very likely to uphold the insurance-coverage requirement -- the opinion that was held by most legal observers across the ideological spectrum, until oral arguments.


Stay tuned....

Is freedom really the issue in the Court's health care deliberations?

There is much more at stake in the Court's deliberations about the Affordable Care Act (ACA) than just this one bill. Some of the conservatives on the court would like to eliminate the expansive post-New Deal constitutional interpretation of the Commerce Clause, depriving the American people of the ability to address our common concerns in the way that all modern states do.

Does anyone honestly think that our freedom is more threatened by the ACA, than by the class-based rationing of basic health that will persist and expand in its absence?  What good is a freedom if there is no practical political technology that allows us equal access and the ability to exercise it?