Live long enough and you’re bound to pick up experiences you never imagined you’d ever have – like chatting about the chord changes to a minor jazz tune, A Night in Tunisia, with an excitable young French guitar player, on a rainy June afternoon at a shabby café in an obscure corner of Montmartre. Such things happen eventually. And there was exchanging pleasantries with Ronald Reagan’s secretary of defense, Frank Carlucci – right there in a big office in the Pentagon, back in the eighties. That was odd, as was smoking a pipe with the Surgeon General – that odd Koop fellow with the even odder beard – trading notes on pipe tobacco, at a private home that evening. There’s no way any of that could have been predicted. All this was as odd as once playing in a jug band, only one time, with John Denver, before he got famous – or a summer pumping gas in the Caribbean, or snagging a ride on the Goodyear Blimp, in the co-pilot’s seat. And everyone should attend a graduation at West Point once in their life. Even if you’re a generally counterculture sixties guy that’ll get to you – those are fine young men, and women of course. The secret to it all is to hang around long enough. All sorts of things will happen.
But you’ll probably never get a chance to argue a case in front of the Supreme Court. Few do. Still, sooner or later, you might meet someone who has, and in this case it was a former friend who was an assistant state attorney general in the Midwest. Her tales were harrowing, as Antonin Scalia is not a nice man. Even a decade or more ago he was nasty – always on the mocking attack, even if he agreed with you. That’s something you don’t want to experience – it’s best to let a friend tell you about it. She preferred Richard Posner – the famous judge of the Court of Appeals for the Seventh Circuit – a brilliant thinker on the law, but concerned with law, not with bullying those he considered intellectual and moral scum, which for Scalia seems just about everyone.
And in the Arizona immigration case he was at it again:
Justice Antonin Scalia has never been shy about saying what he thinks and never reluctant to criticize those he disagrees with. For more than a quarter-century, the high court’s term has nearly always ended with a rush of opinions in late June and a fiery dissent from Scalia. His colleagues sit with tight expressions or distant gazes as Scalia sounds off, his tone one of anger and disgust.
His targets Monday included illegal immigrants and President Obama. Dispensing with what he called the “dry legalities” of the Arizona immigration case, he spoke of its citizens being “under siege” and states feeling “helpless before those evil effects of illegal immigration.”
But this may have been too much:
Some said it was highly unusual, and perhaps out of line, for Scalia to cite Obama’s announcement in mid-June that he was granting a two-year reprieve to young people who entered the country illegally as children. Obama may have called it “the right thing to do,” Scalia said, but “Arizona may not think so.” Usually, the justices rely only on what is in the legal record of the case.
Scalia didn’t want to talk about the case at hand or about the applicable law – he was pissed off at Obama, on another matter. But the other justices are used to his ways by now:
In 1989, he criticized Justice Sandra Day O’Connor when she refused to go along with an opinion by then-Chief Justice William H. Rehnquist that would have overturned the Roe vs. Wade decision that legalized abortion. O’Connor said such a decision was premature, since the case before the court involved only minor regulation of abortion. In a full-bore dissent, Scalia said her view was “not to be taken seriously.” Three years later, Justices Kennedy and David H. Souter joined with O’Connor and broke with Scalia to uphold the abortion right. More recently, Kennedy, O’Connor and Souter voted to uphold gay rights claims, despite fierce dissents from Scalia.
He’ll call the other justices intellectual and moral scum, and they’ll simply go about their business. That’s just how he is, and of course he was George Bush’s favorite on the Court – their personalities matched.
But Richard Posner was not impressed:
In his peroration, Justice Scalia says that “Arizona bears the brunt of the country’s illegal immigration problem. Its citizens feel themselves under siege by large numbers of illegal immigrant who invade their property, strain their social services, and even place their lives in jeopardy.”
Arizona bears the brunt? Arizona is only one of the states that border Mexico, and if it succeeds in excluding illegal immigrants, these other states will bear the brunt, so it is unclear what the net gain to society would have been from Arizona’s efforts, now partially invalidated by the Supreme Court. But the suggestion that illegal immigrants in Arizona are invading Americans’ property, straining their social services, and even placing their lives in jeopardy is sufficiently inflammatory to call for a citation to some reputable source of such hyperbole. Justice Scalia cites nothing to support it.
And there’s the bigger issue:
Justice Scalia is famously outspoken. Is that a good thing for a Supreme Court justice to be? Good or bad, it seems correlated with an increasing tendency of justices to engage in celebrity-type extrajudicial activities, such as presiding at mock trials of fictional and historical figures (was Hamlet temporarily insane when he killed Polonius? Should George Custer be posthumously court-martialed for blowing the Battle of the Little Big Horn?). My own view, expressed much better by professor Lawrence Douglas of Amherst, is that such activities give a mistaken impression of what trials are good for. But I would give Justice Sotomayor a pass for appearing on Sesame Street to adjudicate a dispute between two stuffed animals.
As my former friend would probably agree, the wrong guy is on the Supreme Court, and Ed Kilgore adds this:
The general, cynical assumption of many “sophisticated” lay people is that judges have always been political whores who do what their constituencies – or the pols that appointed them – want. I’d say that’s been true at some points in American history, and calumny in others. Posner himself is a pretty good living testimony to the ability of a jurist to transcend politics and make everyone angry… from time to time. But he is not exactly inspiring confidence that the Supremes are going to rise to the non-political occasion tomorrow morning at 10:00 EDT.
Yes, that was written the day before the decision on the constitutionality of the Affordable Care Act, or maybe just the constitutionality of its individual mandate, requiring everyone to carry at least some sort of healthcare policy, simply to spread the costs around so that the insurance companies, having to take all comers now, don’t go broke when someone needs something expensive to save their life. And that may be in the hands of nine political whores, with one of them spinning off on angry tangents more than ever before.
Michael Tomasky sees how this plays out:
This is easy. I take the darkest and most cynical possible view of the conservative majority; I believe, as I’ve written, that they are politicians in robes (with the partial exception of Kennedy); as such, I believe that they will behave here like politicians, and they will render the decision that will inflict the maximum possible political damage on Obama and the Democrats. That means overturning the mandate 5-4.
That’s his prediction, with these details:
That means overturning the mandate 5-4. But it means doing so narrowly, carefully, almost regretfully. In other words, they want more than anything else not to rile up liberals. Tossing the whole thing would do that. Tossing the Medicaid expansion would kinda do that. Tossing guaranteed coverage issue would kinda do it too, and would even have reach into independents and Republicans, since the guaranteed issue is so popular.
They’ll want to minimize backlash, in other words – both backlash against them as an institution and electoral backlash that might help Obama and the D’s. So they’ll limit their overturning to the mandate. And as I say, the majority opinion will say things like gee, we are deeply sympathetic to the problems inherent in the health-care system, but regretfully, we simply can’t endorse this method under our reading of the Constitution.
That way, Obama is screwed (yes – the D’s and even maybe the media will try to paint that as a partial win for the White House, but it won’t be in my view). And yet the majority also seems reasonable. That’s the needle I predict they’re going to thread. What about the law, you say? Fiddle-dee-dee. This is politics, pure and simple. …
It’s a political court and it will render a political decision, but one disguised as Solomonic and equal to the gravity of the moment.
The Washington Post’s Jonathan Bernstein, however, calls for some perspective, as while this is political, it’s far more than that:
The Court’s decision will matter, substantively, in two ways. First, depending on what the Court says, either millions of people will soon be able to get health insurance, or they won’t. Either insurance companies will essentially be transformed into regulated utilities – no lifetime limits, no recissions, a tough standard for the percentage of premiums that go to benefits – or they won’t. Either the new efforts to limit the costs of Medicare will continue to be implemented, or they won’t.
And on and on: the Affordable Care Act is a huge, far-reaching law, and even the basics aren’t all that easy to describe. Whether you want those things to happen or not (or even if you live in terror at the thought of Broccoli Tyranny), the Court’s decision will have repercussions for decades.
And there’s the matter of the Constitution, which is no small matter here:
The Court may take a major step towards implementing an agenda of returning the Constitution – and the government in general – to how it was before the New Deal. Or it may re-affirm current Constitutional precedents. The results have incredibly far-reaching, and not fully predictable, consequences for everything that government currently does or that future Congresses and presidents might want to do.
That’s what’s at stake, and none of it will change based on who wins a short-term advantage in the spin wars. It just won’t.
And spin really doesn’t matter this time:
What the Court decides will be carried out regardless of what anyone thinks or says about it – and regardless of who is declared the “winner” or “loser.” And the direct electoral consequences of this decision will be limited. Should the law be at least partially upheld, Democratic Senators are not going to suddenly abandon it and allow Republicans to repeal whatever remains. Nor are Republicans going to drop their objections to Obamacare if it survives in part or completely. As far as voters… most of them aren’t paying much attention, and they’re not going to vote based on this decision or their media-derived impression of it either way.
Then Bernstein offers some highly unusual advice for reporters:
This is one where substance really, really matters. Figure out what the Court is saying, and how it will affect real people and future cases. That’s the story here, and it’s a good one.
Hey, sometimes what you never expected to happen happens, and this is one of those times. Winners-and-losers politics really isn’t at issue here. Who knew?
As for the unexpected, the hotshot lawyers at SCOTUS Blog finally made a prediction, presented by Tom Goldstein:
In the end, you have to make a prediction and take responsibility for it. I believe the mandate will not be invalidated tomorrow. Far less important, I expect the principal opinion will be written by the Chief Justice; a majority of the Court will find it has jurisdiction; and the challenge to the Medicaid expansion will be rejected.
Goldstein knows that most observers disagree, but he’s followed it all, in all the detail only lawyers follow, and that matters more than worrying and ranting:
In the end, based on the entire mix of information I have, I think the mandate will not be struck down tomorrow. (I don’t have any inside information, nor does anyone else.) My prediction includes the possibility that there will not be a single majority opinion for the theory on which the mandate is upheld, and even the thin possibility that the Court will not have a majority to find the mandate constitutional.
My level of confidence isn’t overwhelming, but it’s good enough to give a concrete prediction.
Yes, sometimes what you never expected to happen does happen – but here are pages and pages of other predictions. Maybe you just have to wait around to see what happens, even if you can’t wait at an out-of-the-way café in Montmartre on a rainy June afternoon.
Or maybe you make contingency plans:
The progressive activists who put the public option at the heart of the health care reform debate in 2009 and 2010 will return in 2012 to press Democrats to back a single-payer system if the Supreme Court throws out the Affordable Care Act on Thursday.
For progressives, Medicare for All – or a similar approach – was always the ideal way to address the soaring costs and widespread un- and underinsurance that defined the country’s broken health care system. But Democratic leaders believed an approach along the lines of Mitt Romney’s reforms in Massachusetts would stand a better chance of attracting Republican and conservative Democratic support in Congress, and foreclosed on the single-payer model without giving it any legislative consideration.
There’s still a coalition for Medicare for All:
That’s why the same disappointed activists aren’t sweating Thursday’s Supreme Court ruling. If the health care law fails, they believe it will open up a whole new set of political and substantive opportunities for liberals.
But Ed Kilgore says that, if you try that, you can expect the expected:
The idea of making Medicare universal – even if it initially gains a positive response in public opinion – is going to run into some serious heavy weather once specifics are discussed and criticism begins.
As I’ve argued for a good while as others wondered why Republicans have been able to pit Medicare beneficiaries against those benefitting from ACA, many and perhaps most seniors receiving Medicare do not perceive the program as a social good that government gives them, but as an earned benefit – earned through lifelong payroll taxes, premium payments (once retirement age is reached), and more abstractly, through a lifetime of work that is performed before eligibility is reached. Extending “Medicare” to “all” would change that assumption rather dramatically, particularly with respect to younger beneficiaries (including children) who haven’t “earned” much of anything, from the point of view of seniors.
Kilgore says everyone should be able to see what would happen next:
The GOP talking points write themselves: Liberals want to give YOUR Medicare to THOSE PEOPLE! If “Medicare for All” is vastly easier to understand than ObamaCare, then so, too, are the racial and generational arguments against making it available to darker and younger people as opposed to just “cutting” Medicare (or setting up “death panels”) to give something new to THOSE PEOPLE.
I’m afraid anyone who thinks a universal Medicare would be as popular as the current Medicare is missing this important if unfortunate point.
But Digby (Heather Parton) sees that as no reason not to try to pull this off:
If Obamacare is found to be unconstitutional, I suspect it will require that the employer-sponsored healthcare system break down to such an extent that most Americans are affected before we take another whack at it. It’s likely to take a while and during that time liberals have a huge job ahead of them, to make people understand the moral imperative of universal health care. They really need to make sure that the libertarian/conservative cant that led to people shouting “yes” and applauding the idea of letting people die at the Republican presidential debates is shown to be the inevitable result of our unwillingness to embrace universal health care.
And she relies on this:
I do think that most people are either morally repelled by that “yeah!” or are smart enough to realize it could one day be themselves in that position to eventually understand this. But they haven’t made the connection between that and the necessity for a commitment to universality. A campaign for “Medicare for All” could be a great vehicle to make that case – but it shouldn’t be done with eyes closed to what the reaction from the right would be.
In fact, this campaign should be done regardless of whether the Supreme Court knocks down the ACA tomorrow. The moral arguments must still be made to ensure that the reforms are strengthened rather than weakened. It’s the right thing to do no matter what. But it won’t be easy.
But then she cites one of the men behind the no-government privatize-everything Paul Ryan budget, a bullet-point from an item by the noted libertarian economist Tyler Cowan:
A rejection of health care egalitarianism, namely recognition that the wealthy will purchase more and better health care than the poor: Trying to equalize health care consumption hurts the poor, since most feasible policies to do this take away cash from the poor, either directly or through the operation of tax incidence. We need to accept the principle that sometimes poor people will die just because they are poor. Some of you don’t like the sound of that, but we already let the wealthy enjoy all sorts of other goods – most importantly status – which lengthen their lives and which the poor enjoy to a much lesser degree. We shouldn’t screw up our health care institutions by being determined to fight inegalitarian principles for one very select set of factors which determine health care outcomes.
There you have it. Poor people dying are part of what makes our system so great. Why mess with success? Do most Americans agree with that? I’d like to know.
But maybe she doesn’t want to know. What she expects is quite unlikely – that people might actually embrace the idea that poor people simply dying is right and good and moral – could well be exactly what happens. Dickens had Scrooge say this – “If he be like to die, he had better do it, and decrease the surplus population.” Dickens was just reporting on how some people think. Now it’s Tyler Cowan, and those who cheered at the Republican primaries for much the same sort of thing.
But life is an adventure. The unexpected will happen, eventually. It’s the waiting that’s the problem.