Previews of Coming Attractions

No, no one knows why they still call them trailers. Yes, those movie previews used to come after the feature film – but the satisfied and thoroughly entertained audience, or those disappointed or nicotine-crazed after two hours in the dark, naturally walked out and didn’t stay to watch them, so long ago they moved the trailers up front. But the name stuck, and now that fewer and fewer people are going to movies, when you can stream most everything and watch it at home, or on your phone, or not at all, the trailers are on television, or on the screen in the elevator in your office building. They trail nothing and precede nothing. And they’re just teases – the very best clips from the upcoming movie, suggesting there’s much more of the same waiting for you in a week or two if you’re willing to fork over ten bucks, or twenty, depending in the city or suburb where you live.

But everyone knows that the trailer has the good stuff and the movie itself has the boring crap, the expository filler between the explosions or the hot sex scenes. Sometimes the trailer is good enough. You get the general idea. You may want more of the same, but you know more of the same usually comes with a meandering unlikely narrative and extensive character development, with back-stories establishing motivation and this and that – as if you care. A good trailer might make you care, but we are a nation addicted to immediate sensation, with a short attention span. All we want is the massive special effects shot and, maybe, some sense of what’s going on, the general idea. That’ll do.

And it’s not just movies. That’s how we consume life, as much of life is the boring crap, the expository filler. We don’t follow the boring details of politics, of proposed public policy and party procedure – just the Etch-a-Sketch stuff – and following developments in the law is absurd. Lawyers make big money talking about complex stuff no one understands, and the big decisions made by the Supreme Court are the result of extraordinary arguments made in a small room with no cameras and no microphones. All you’ll ever get is second-hand accounts, and then long and quite turgid written opinions on an equally opaque written decision. This is not exciting stuff. But these nine judges once ended racial segregation in all public schools, and declared abortion legal, and made George Bush president, not the guy who got far more votes, Al Gore. And in Citizens United they affirmed that corporations are really people, with free-speech rights, and thus could spend unlimited funds, billions if they choose, to sway elections – and that like people they have privacy rights, so they don’t have to let anyone know they’re doing that. These things changed America. This legal stuff does matter – so what we really need here are good trailers, to get us excited about that they’re up to.

And what the Supreme Court is up to is coming next week – six hours of argument over three days on the Affordable Care Act, on Obamacare. They could declare the whole thing unconstitutional right before the election, handing Obama a stinging defeat and assuring the next president is a Republican, even if the Republicans just give up and nominate Chuck Norris or Pat Boone or Ted Nugent. The majority of the justices were appointed by Republican presidents and they did decide Bush should be president, not Gore. They’ve done this sort of things before, and they may again. This will be a real cliffhanger, and it begs for a good trailer, a preview that packs the theater – even if very few can get in to see the show.

And the two best trailers out there are from Slate’s Dahlia Lithwick and the New York Times’ Linda Greenhouse – both pretty hair-raising. And Lithwick opens with this:

Amid all the throat-clearing, odds-making, and curtain-raising that surrounds next week’s health care case, it seems worth noting what is in dispute and what’s not. So let’s start by setting forth two uncontroversial propositions.

The first proposition is that the health care law is constitutional. The second is that the court could strike it down anyway.

And Linda Greenhouse is up first:

It’s one thing to engage in prediction that flows from analysis: which side is most likely to win? It’s quite another to let readers in on the fact that one side’s argument is so manifestly weak that it doesn’t deserve to win. Journalistic accounts of court cases, at least in advance of a definitive ruling, understandably tend to take the safe course and treat the arguments on both sides with equal dignity. So it’s perhaps not surprising that just about half the public apparently believes that the Affordable Care Act’s individual mandate is unconstitutional.

Free of convention and fresh from reading the main briefs in the case to be argued before the Supreme Court next week, I’m here to tell you: that belief is simply wrong. The constitutional challenge to the law’s requirement for people to buy health insurance – specifically, the argument that the mandate exceeds Congress’s power under the Commerce Clause – is rhetorically powerful but analytically so weak that it dissolves on close inspection.

There’s just a lot of bullshit being flung about:

Basically just one word, in fact: “unprecedented.” Did you know that the individual mandate is unprecedented? You will after you read the brief filed by the redoubtable Paul D. Clement, the former solicitor general, on behalf of the 26 states that filed suit to challenge the law. The brief uses the word “unprecedented” 10 times, by my count – I probably missed some – not counting such other formulations of the same thought as “novel” and “first ever.” Okay, I get it. I’ll even accept it as true: granted that passage of the Affordable Care Act ended decades of deadlock over how to reform the developed world’s most irrational health care system. It should have happened much earlier.

Unprecedented is a description, not an analysis. What’s unprecedented is the singular determination of the Republicans both on Capitol Hill and in the statehouses to deprive President Obama of his major domestic achievement. Republican officeholders in all 26 states joined together in the case now known as United States Department of Health and Human Services v. State of Florida. In 22 of those states, the officeholder was the attorney general. In four states with Democratic attorneys general (Nevada, Wyoming, Iowa and Mississippi), Republican governors filed in their own names. If any of them noted any irony in the fact that not so long ago, the individual mandate was an idea cooked up by conservative policy wonks to counter more fundamental reform sought by the Clinton administration, they offer no sign.

The countless unprecedented things that Congress has done over the centuries were not, for that reason, unconstitutional. Social Security, Medicare, the Employee Retirement Income Security Act (ERISA), and the Emergency Medical Treatment and Labor Act, the 1986 law passed to prevent hospitals from refusing to care for uninsured patients in acute distress, all come to mind.

So she is not amused by what she’s reading:

“The Constitution protects and promotes individual liberty, while the mandate’s threat to liberty is obvious.” How so? “It is a revolution in the relationship between the central government and the governed.” In what respect? Beyond regulating commerce, a power explicitly granted to Congress by Article I of the Constitution, the Affordable Care Act gives Congress “the power to compel individuals to enter into commerce” – a “fundamental” distinction with “breathtaking” implications.

This is the argument that persuaded the two members of the three-judge panel of the Atlanta-based United States Court of Appeals for the 11th Circuit who voted to invalidate the mandate. The government argues that, to the contrary, the “uncompensated consumption of health care” by those who are willfully or helplessly uninsured is itself an enormous economic activity. The uninsured don’t exist apart from commerce. To the contrary – their medical care results in some $43 billion of uncovered health care costs annually and, through cost-shifting, adds $1,000 a year to the average cost of a family insurance policy. People who don’t want to buy broccoli or a new car can eat Brussel sprouts or take the bus, but those without health insurance are in commerce whether they like it or not.

This doesn’t even pass the laugh test:

Indeed, just a few years ago, the constitutional argument against the mandate struck most people who thought about the matter as frivolous. In 2009, the House speaker, Nancy Pelosi, famously replied “Are you serious?” to a question about the bill’s constitutionality.

The opponents’ argument has been gussied up since then, which brings to mind Barack Obama’s remark during the 2008 campaign about putting lipstick on a pig. One of the more depressing news items I’ve seen lately was the report of a Bloomberg News national poll indicating that 75 percent of people expect that the Supreme Court’s health care decision will be influenced by the justices’ politics. Only 17 percent predicted that the case would be decided “solely on legal merits.” (This from a majority of poll respondents who said the law should be “left alone” or modified only slightly, presumably in the political arena.)

Now it’s up to the court to prove them wrong.

And that’s matched by Lithwick:

That the law is constitutional is best illustrated by the fact that – until recently – the Obama administration expended almost no energy defending it. … And the fact that the Obama administration rushed the case to the Supreme Court in an election year is all the evidence you need to understand that they remain confident in their prospects. The law is a completely valid exercise of Congress’ Commerce Clause power, and all the conservative longing for the good old days of the pre-New Deal courts won’t put us back in those days as if by magic. Nor does it amount to much of an argument.

So she says the really interesting question is whether the Court’s five conservatives will strike it down anyway:

That’s what we’re really talking about next week and that has almost nothing to do with law and everything to do with optics, politics, and public opinion. That means that Justice Antonin Scalia’s opinion in the Raich medicinal marijuana case, and Chief Justice John Roberts’ and Anthony Kennedy’s opinions in Comstock only get us so far. Despite the fact that reading the entrails of those opinions suggest that they’d contribute to an easy fifth, sixth, and seventh vote to uphold the individual mandate as a legitimate exercise of Congressional power, the real question isn’t whether those Justices will be bound by seventy years of precedent or their own prior writings on federal power. The only question is whether they will ignore it all to deprive the Obama of one of his signature accomplishments.

You can read about the Raich and Comstock decisions here – they put minor limits on the scope of the Commerce Clause but upheld it, and led Professor Randy Barnett, who Lithwick identifies as the man behind this entire healthcare challenge, to say Justice Scalia could “break from all his previous opinions” and strike down Obamacare without breaking a sweat – as Scalia is bold and on the right side here, or the side of the Right.

And Lithwick suspects that’s true:

If that’s true, we should stop fussing about old precedents. These old milestones of jurisprudence aren’t what will give Scalia pause. What matters is whether the five conservative justices are so intent in striking down Obama’s healthcare law that they would risk a chilly and divisive 5-4 dip back into the waters of Bush v. Gore and Citizens United.

But she’s not sure they’d risk it:

The court likes to pretend it’s completely above public opinion, inured to the momentary zigs and zags of the polls. But most of us know that nothing could be further from the truth.

Her argument is that the Court is now, maybe for the first time, quite worried that the nation thinks they’re jerks, and here things get complicated:

We know that the court took a huge public opinion hit after Bush v. Gore and again after Citizens United. But that doesn’t necessarily help the administration. Because in this case the American public believes the health care law is unconstitutional. The most recent polling I have seen shows that over 50 percent of the American people – including many who benefit from popular provisions of the law – still believe it’s unconstitutional.

Part of this goes back to the administration’s abject failure in defending the constitutionality of the law over the past two years. Of course the public thinks the law is unconstitutional. They never heard a single word defending it. And I am willing to lay odds that if the public broadly supported ACA we would not be having a six-hour conversation next week suggesting that the court would strike it down. The challengers’ greatest weapon in this case was momentum: A series of lower courts, and then an appeals court, signed off on the argument that this was a fundamental incursion into basic liberty. Then, suddenly, the case seemed plausible.

But then there’s the other side of this:

As it happens, the current court is almost fanatically worried about its legitimacy and declining public confidence in the institution. For over a decade now, the justices have been united in signaling that they are moderate, temperate, and minimalist in their duties. From Chief Justice Robert’s description of himself as just an “umpire” and his speeches about humility and the need for unanimity, to Stephen Breyer’s latest book Making Our Democracy Work – a meditation on all the ways the courts depend on public confidence. Roberts even nodded at that court-wide anxiety by devoting most of his 2011 State of the Judiciary report to issues of recusal and judicial integrity, and by reversing his own policy on same-day audio release, in order to allow the American public to listen in on the health care cases next week (albeit on a two-hour delay).

That means that the court goes into this case knowing that the public is desperately interested in the case, desperately divided about the odds, and deeply worried about the neutrality of the court. … To hand down a 5-4, ideologically divided opinion just before the Republican and Democratic Party conventions, would – simply put – prove that 75 percent correct, and erode further the public esteem for the court. Justice Clarence Thomas doesn’t worry much about things like that. I suspect Chief Justice Roberts and Justice Kennedy worry quite a lot.

Heck, it’s almost like a Hollywood movie – agonizing conflict, big decisions, an anxious and angry nation on edge, waiting to see what these troubled five conservative men in odd black robes will do! And the nation’s fate hangs in the balance! That’s the trailer.

But Lithwick also argues that some justices might believe that this isn’t a fight worth having at all:

Not now and not over this issue. Recall, even absent the health care case, the 2011 and 2012 terms will represent two of the most divisive and incendiary terms in recent memory. The court isn’t just hearing the health care case this year. It also heard a Texas redistricting case, and the Arizona immigration case. Next year it will hear the Texas affirmative action case, and very likely a case that will question the entire existence of Section 5 of the Voting Rights Act. Oh, and next term, the court may well have to contend with a gay marriage case, and at the rate state legislators are passing patently unconstitutional abortion regulations, it’s not unlikely the court will be revisiting Roe soon thereafter.

Given that line up of future cases, the five conservatives may want to keep their powder dry for now.

I think they will.

And she cites a poll released this week by the American Bar Association – most of those who follow such things believe Obamacare will be just fine:

And why is that? Not just the fact that – as I’ve said at the outset – the law is constitutional, well within the boundaries of Congress’ Commerce Clause authority. It’s because for the court to strike it down, the justices would have to pick a fight that wasn’t theirs in the first place.

In fact this whole thing was ginned up:

The challenges to Obama’s health care initiative didn’t begin in the conservative legal academy. They didn’t even really blossom in the conservative legal media or think tanks. The real energy of these challenges arose out of those Tea Party town halls throughout the summer of 2010, in response to a longing to return to constitutional values, states’ rights, and ideas of individual liberty that have been dead for almost a century. That isn’t to dismiss the validity of the passionate public opposition to this law, or even to denigrate the truly heroic efforts of Randy Barnett, the Cato Institute, or the millions of Americans who deeply believe that this is a case about liberty, broccoli, and the short hop from the individual mandate to federal tyranny. It’s simply to say that it’s no accident that these cases were filed by state attorneys general and governors swept up in political currents, willing to make novel arguments in the form of what was always a constitutional Hail Mary pass. It’s no accident that until the lower district courts started striking down the act, none of the challengers really believed that they could succeed. And it’s no accident that three of the most influential and well respected conservative jurists in the land have ruled that of course the law is constitutional, even if they hate it as a policy matter. It’s no accident, either, that Charles Fried, Reagan’s Solicitor General and Harvard conservative legend, said in an interview with Dan Rather Reports this week the case would be decided 8-1 – in favor of the law.

The conservative legal elites don’t believe in the merits of this challenge, even if the public does.

But we all like a dramatic extravaganza, even if we don’t understand the details. And as nation addicted to immediate sensation, with a short attention span, all we want is the massive special effects shots and, maybe, some general sense of what’s going on. That’ll do. And that’s how most people will follow this – Tony Scalia verses Barry Obama in the Hunger Games. Only one will be left standing!

But once again the trailer will be better than the movie. Someone is going to be disappointed.