Blog on the Run: Reloaded

Thursday, March 29, 2012 12:25 am

Is it too late for John Cole to file an amicus brief with the Supremes?


Because he has a good point:

I just discovered what it [“the broccoli mandate”] is, and it distresses me to no end that our wingnuts are actively trying to make us dumber. Of course no one is going to be mandated to buy broccoli, you wankers. But you know what I am mandated to buy because of the actions of a bunch of midwestern conservative pols? Corn. There is a live, actual corn mandate. Every time I go to the gas station to buy gas, I am forced, against my will, to buy corn products.

So you know where you jackasses can stick that broccoli…

I also don’t see the Supremes objecting to the fact that I have to pay for wars I don’t support.

Oh, and while we’re on the subject, Antonin Scalia stumbled onto something very interesting with his point about legislative inertia. And, by interesting, I mean, “damning.”

Scalia, remember, is a guy with a long track record of claiming that congressional gridlock is a feature, not a bug. Now, however, in today’s “severability” argument — that is, what, if anything, else should the Supremes do if they find the Affordable Care Act’s requirement to buy health insurance unconstitutional: toss out that part only and leave the rest to Congress, or toss the whole thing and order Congress to start fresh?

A couple of points:

First, I was listening to this on the car radio, but it sounded to me as if Scalia was arguing that the court should toss the whole enchilada because Congress, which he believes should, can’t. If that’s in fact what he meant, it’s an interesting 180-degree switch from his view up until now that it ought to be hard to get Congress to do things.

Second, it’s interesting in that he appears to be arguing that the Congress isn’t just inertial, it’s dysfunctional. Given that the reasons for that are well-known and objectively attributable in the main to one and only one party, Scalia’s party, it’s kind of damning in terms of how it characterizes congressional Republicans.

Third, he appears to be making the case, then, that separation of powers means nothing if that separation leads to an outcome he doesn’t want (or, technically, fails to lead to an outcome he desires). This is the apotheosis of judicial activism, which, of course, we have been roundly assured that conservatives such as Scalia oppose. Relatedly, given the fact that the GOP has no alternative — not even an unworkable one; they literally have nothing — to the Affordable Care Act, I eagerly await Scalia’s leaping in to craft health-care law from the bench once the ACA is struck down, 30-million-plus currently insured Americans get kicked back off the rolls and all hell breaks loose. Ahem.

An awful lot of really smart legal scholars, even some who worked in the Bush 43 administration, predicted that the court would uphold the Affordable Care Act, individual mandate and all, and now many of them are horrified to find out that this case might not be decided on the facts and the law after all. In point of fact, the scales fell from my eyes more than a decade ago, with Bush v. Gore. I figured that any court that could issue that ruling might well find public sodomizing of kittens constitutional as long as a GOP solicitor general argued for it, and Scalia’s questions and tone in this week’s oral arguments on the health-care law seem to bear that out.

Well, OK, that’s not exactly what I said seven months ago, but it’s close:

So this puppy is headed to the Supreme Court, where a ruling against the mandate would be both the overturning of 70 years of case law and not all that surprising, given the predilection the Roberts Court has shown for legislating from the bench. … But were I forced at gunpoint to make [a] prediction, I’d call for no worse than a 5-4 majority to uphold. The bottom line is that Justice Kennedy hasn’t gone crazy. Yet.

Kennedy’s sanity isn’t as much of a lock now as it was in August.



  1. Not at all. Do encourage Cole to submit his arguments to the SCOTUS. You may be on to something here, For example:

    Did Bloggers Kill The Healthcare Mandate ?

    “So what gets broadcast in the echo chamber is louder now that it ever has been. But the chamber is getting bigger, too. The “legal culture” to which Barnett refers now encompasses more than just justices and legal writers. Liptak says that smart legal bloggers get noticed and allow journalists to hear voices outside the “same handful of people” they would normally consult on hard questions.

    But the democratization goes deeper than that. The conservative legal movement that started in the Reagan era brought along with it a new legal populism. The Tea Party, with “taking back the Constitution” at the center of its rhetoric, has only further spread the idea that elites have hijacked the judiciary, obscured the Constitution’s clear meaning, and used the courts to further a leftist political agenda.

    Whatever the merits of those claims, it started a national, popular conversation about the Constitution. Today, 79% of Americans say they understand “some” or “a lot” of the Constitution, and more than 70% of Americans believe they know enough about the health-care reform challenges to form an opinion about whether an individual insurance mandate exceeds constitutional boundaries.

    That opinion, astonishingly, turns out not to be just a reflection of how respondents feel about the mandate generally. Polling about Supreme Court cases tends to reflect people’s views of the phenomenon in question: If you’re pro-choice, you think that Roe was properly decided. But in polls about the Affordable Care Act, there’s no discernible correlation between support for the mandate itself and perceptions of its constitutionality. In March 2010, when pollsters first asked the public’s opinion on the lawsuits, Americans were more or less evenly split, with 46% saying the mandate was constitutional. This month, it’s 28%. This happened while support for the law as a policy matter, while consistently low, has stayed steady or increased.”

    Comment by Fred Gregory — Thursday, March 29, 2012 4:11 pm @ 4:11 pm

  2. Cole’s follow-up is even better.

    Teicholz’s piece seems to be arguing that 1) the constitutionality of something is just one more thing to poll on, rather than something that might, in at least some cases, be objectively determinable, and 2) ignorant people have a right to influence Supreme Court rulings, too. Because that worked out so well for Harrold Carswell or something, I guess. But you can’t seriously argue that the influence of Tea Partiers is a good thing when Tea Partiers and their corporate backers were the primary sources of all kinds of misinformation and outright lies about the bill from the day it was introduced. And people far more respectable than I agree with me that their influence is a bad thing.

    Is the individual mandate constitutional? If it’s not, then neither are many other things the government is now doing that no one of either party seems to want to argue against. And Calvinball is no way to run a democratic republic.

    Comment by Lex — Thursday, March 29, 2012 4:23 pm @ 4:23 pm

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