All politics is a matter of trust. Only policy wonks and political junkies follow the big issues – normal folks don’t have time to look into the situation with Syria, in relation to Iran and Russia and possible disruption of the world’s oil supply, and thus the world’s economy, should everything go to hell in the Middle East. And as for Israel bombing Iran and setting off a regional war, and perhaps a world war, as the rockets rain down on Tel Aviv and everyone has to respond – most people think of that in bumper-sticker terms – plucky little Israel has the right to defend itself so it’s okay if they do. No one bothers with the details. And it’s the same with domestic issues. Most folks don’t follow matters of regulatory policy as it has to do with gigantic opaque banks and the utterly mysterious financial services industry, or with coal power plants or pharmaceuticals. Regulation is bad, and there should be less of it, or none of it. No one bothers with the details of that stuff either. We elect our representatives to go to Washington and think about the tedious details. Someone has to do it, and we trust them not to screw up, and trust them not to send us to war over sheer nonsense. We simply don’t want to know the details. And when they campaign we hardly listen to their policy positions, as not only is that stuff boring, everyone knows stuff will happen that no one anticipated and those positions will then be irrelevant and just a curiosity. It happens all the time. So we simply elect someone who seems level-headed, as far as we can tell, and hope for the best. It’s the blindest of blind faith, but it is faith nonetheless.
And we elect a president too, who can veto any nonsense Congress passes, or slow-walk its implementation. We elect, or really hire, what we hope is a competent administrator – as for as we can tell. But we won’t know until he’s on the job, so that’s a matter of trust too. But that’s trust in the system, set up so these guys (and women) in Congress don’t do anything too foolish – what’s proposed in the House can be shot down in the Senate, and the other way around, which keeps things marginally sensible, and the president can check the Congress if something really gets out of hand. And then there’s the Supreme Court. They look at the Constitution and can tell the president no, you can’t do that, or tell Congress the law it just passed is something that’s really not allowed at all. They have the rulebook.
So it comes down to this – the people we decided to trust, and sent to Washington, could turn out to be dangerous nuts. We chose them on a wild guess about their inclinations after all. And maybe you can’t really trust them. But what are you going to do? You really don’t know them, or the issues. But you can trust the system. It’s set up to keep the almost random choices of a casual and indifferent nation from doing anything completely disastrous. We’ll accept moderately small disasters of course. It happens when you build a team on pure guesswork. You have to trust the system. There’ no other choice.
But now a number of people are looking at what might be system failure. At least Jonathan Cohn is:
Before this week, the well-being of tens of millions of Americans was at stake in the lawsuits challenging the Affordable Care Act. Now something else is at stake, too: The legitimacy of the Supreme Court.
Even now, I have trouble wrapping my mind around what I saw in the courtroom this week and what a majority of the justices may be contemplating.
They decided to examine whether the government had, with this law, “a heavy burden of justification to show authorization under the Constitution.” But Cohn sees that as backward:
The heavy burden in this case is on the justices threatening to strike down health care reform. They have not met it.
We are in new territory here:
Rarely in American history has the Court struck down laws in decisions that would have such quick widespread impact. In the modern era, only two cases come to mind: Brown v. Board of Education and Roe v. Wade. Both were acts of ambitious, even audacious judicial activism. But, in two key respects, they were different from a potential ruling against the Affordable Care Act.
Brown was a unanimous, nine-to-zero decision. Roe was a lopsided seven-to-two. These margins mattered: The justices knew that their decisions would be controversial, in part because they were overruling democratically elected majorities – in these cases, state legislators who’d passed laws enforcing segregation and prohibiting abortion. The justices’ authority in these cases derived, in part, from their moral authority. A closely divided bench would have made that impossible.
And now it is impossible:
Virtually everybody agrees that a vote to strike down the Affordable Care Act would be five to four – a bare majority. And it would be a bare partisan majority, with the five Republican appointees overruling the four Democratic appointees. The decision would appear nakedly partisan and utterly devoid of principle. Appearances would not be deceiving.
These nine folks seem no longer the impartial umpires:
Today Brown is a nearly universal icon of social progress, while Roe remains an object of great controversy. But, for better or for worse, both cases represented efforts to change the everyday reality of American life. With Brown, the justices were tearing down barriers to racial equality; with Roe, the justices were eliminating laws that prevented access to abortion.
But in this case, nobody has said they want to stop government from providing universal access to health care. On the contrary, the plaintiffs have stated that a program like Medicare, in which the government provides citizens with insurance directly, would be clearly constitutional. They’ve also stated that a scheme of compulsory private insurance would be constitutional if somehow the government could make people buy it when they show up at the hospital – suggesting, as Elena Kagan stated, that the only problem with the Affordable Care Act is temporal.
That’s odd, but this is odder:
The plaintiffs have conceded that a universal health insurance program would be constitutional if, instead of penalizing people who decline to get insurance, the government enacted a tax and refunded the money to people who had insurance. As Sonia Sotomayor noted, functionally such a scheme would be exactly the same as the Affordable Care Act. Both the plaintiffs and some of the skeptical justices have also indicated that the Affordable Care Act would be constitutional if the law’s architects had simply used the word “tax” to describe the penalty.
Think about that for a second: If the justices strike down the Affordable Care Act, they would be stopping the federal government from pursuing a perfectly constitutional goal via a perfectly constitutional scheme just because Congress and the President didn’t use perfectly constitutional language to describe it. Maybe labels matter, although case law suggests otherwise. But do they matter enough for the Court to throw out a law that will provide insurance to 30 million people, shore up insurance for many more, and help to manage one-sixth of the American economy? It wouldn’t seem so.
Given that, Kevin Drum argues there are two ways to look at this:
The first is through the lens of what it would actually mean to overturn Obamacare. On this score, Jonathan is right: it would be unprecedented. The Supreme Court has handed down plenty of big decisions before, but very, very rarely has it overturned a major piece of federal legislation. Not since the mid 30s, in fact. What’s more, it would be overturning this legislation – a consummately political compromise forged in a consummately political area of public policy – based on a distinction that I think even most of Obamacare’s critics would acknowledge is a very fine point of constitutional law. And that’s not all. It would be overturning the law on a party-line 5-4 vote, and it would be doing so in the wake of oral arguments in which several of the justices made arguments so transparently political that it felt more like we were listening in on the Senate cloakroom than the chambers of the Supreme Court.
This would be a big deal, but not just because of the legislation. This would mean everyone would see the Court as a wholly and naked political body. The system would be broken. But then there’s something else to consider:
There’s also a second lens to look at this through: the lens of public opinion. And although poll results on this are a little tricky to parse, there’s no question that Obamacare is not much of a barnburner among the general public and isn’t getting more popular over time. Even a generous reading of the survey data suggests that only about half the country likes Obamacare, and even among that half support is fairly lukewarm. When the Supreme Court started overturning New Deal legislation in the 30s, it ran into a buzz saw of public condemnation. If it overturned Obamacare, most of the public probably wouldn’t care very much.
So maybe this isn’t that big a deal, or maybe it is:
So which matters more? The general public’s view or the view of a small but dedicated segment of elite opinion? In the short term, the general public probably matters more – in the longer term, probably elite opinion. Obviously we won’t get a reprise of FDR’s disastrous court-packing scheme, but overturning Obamacare could end up mobilizing movement liberalism in the same way that the Warren Court mobilized movement conservatism four decades ago. The nomination of Supreme Court justices is already an intense partisan battleground, and getting more intense all the time. Overturning Obamacare would raise the stakes even higher.
And now the stakes just got higher:
President Barack Obama took an opening shot at conservative justices on the Supreme Court on Monday, warning that a rejection of his sweeping healthcare law would be an act of “judicial activism” that Republicans say they abhor.
He’s now suggesting the system may be broken, and he’s willing to tell the electorate just that:
Obama’s advisers say they have not prepared contingency plans if the measure fails. But the president – who expressed confidence that the court would uphold the law – made clear how he would address it on the campaign trail if the court strikes it down.
“Ultimately, I am confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress,” Obama said at a news conference with the leaders of Canada and Mexico.
And now the shoe is on the other foot:
“And I’d just remind conservative commentators that, for years, what we have heard is, the biggest problem on the bench was judicial activism, or a lack of judicial restraint, that an unelected group of people would somehow overturn a duly constituted and passed law,” Obama said.
“Well, this is a good example, and I’m pretty confident that this court will recognize that and not take that step,” he said.
A five-four decision, with only the partisan Republican-appointed judges reversing most previous case law on the Commerce Clause and all the rest, and contradicting what they themselves had ruled before, would give Obama reason to argue that the system is broken. So when you can’t trust the system you do have to elect the right people, as you see it – that’s all that’s left.
And Jonathan Cohn has more:
You have to go back almost a century, to the cases of the Lochner era, to find examples of the Supreme Court doing something as audacious as it seems to be contemplating now.
You can read about the Lochner Era here – that era from 1889 to 1937 when the Court had a fine old time striking down laws they held to be infringing on economic liberty or private contract rights. Anything that interfered with free-market capitalism was declared unconstitutional – laws on minimum wage, child labor, regulations of the banking, insurance and transportation industries – all of it. There was a reason FDR tried to pack the Court. Nothing he proposed or Congress passed was being allowed – or not much of it. The Supreme Court was instructing the president and Congress on just what they should do with their time, on a daily basis. It was a bit of a power grab.
And now Jeffrey Toobin is saying the current Court should remember that even they know those days are over:
As the Justices have said repeatedly, the courts should overrule the work of Congress only on the rarest occasions. “Conclusory second-guessing of difficult legislative decisions,” Chief Justice William Rehnquist once observed, “is not an attractive way for federal courts to engage in judicial review.” In recent years, the Justices have intervened in these matters solely to protect the rights of minorities shut out of the legislative process.
And Cohn adds this:
A decision striking down the health care law might seem more alarming precisely because it’s part of a pattern that started with Bush v. Gore and Citizens United. The liberal base will certainly see it that way. And although the mandate itself has always been (highly) unpopular, the benefits of insurance reform – in particular, the availability of insurance to people with pre-existing conditions – has always been (highly) popular. If the Court throws out those provisions, or causes them to fail, the public might take more notice, particularly if Democrats frame the issue that way.
But he adds this caveat:
Public perceptions of this case, and the Supreme Court, are not some static reality. How people react to the final ruling will depend a great deal on what they hear and read, directly and indirectly. And that’s true no matter what the Court decides.
But maybe they’ll read David Dayen:
Voters made their approval of that policy known in the… election. Take away the flawed structure of our Congress and our elections, and that describes accountability at work. In fact, if we had a majoritarian Congress and decently managed elections, it’s how the system would work at every level. And that would create more responsive government. But because of the minority veto in the Senate, because elections are governed by big money, and because of the assault on the courts by conservative judicial activists, accountability in the American political context now means that judges selected by long-dead Presidents get by whim to decide if two-year election cycles should be validated or invalidated. It’s an elite conception of government by the unaccountable few. It concerns itself not with the law but with ideological payback. And it’s a dangerous way to go about running a big country.
Yes, the system is broken, and E. J. Dionne sees a sort of right-wing takeover of America, a stealthy coup:
Last week’s Supreme Court oral arguments on health care were the most dramatic example of how radical tea partyism has displaced mainstream conservative thinking. It’s not just that the law’s individual mandate was, until very recently, a conservative idea. Even conservative legal analysts were insisting it was impossible to imagine the court declaring the health-care mandate unconstitutional, given its past decisions.
So imagine the shock when conservative justices repeatedly spouted views closely resembling the tweets and talking points issued by organizations of the sort funded by the Koch brothers. Don’t take it from me. Charles Fried, solicitor general for Ronald Reagan, told The Washington Post’s Ezra Klein that it was absurd for conservatives to pretend that the mandate created a market in healthcare. “The whole thing is just a canard that’s been invented by the tea party,” Fried said, “and I was astonished to hear it coming out of the mouths of the people on that bench.”
And there’s Paul Krugman:
The big bad event of last week was, of course, the Supreme Court hearing on health reform. In the course of that hearing it became clear that several of the justices, and possibly a majority, are political creatures pure and simple, willing to embrace any argument, no matter how absurd, that serves the interests of Team Republican.
But Krugman says that’s just like the Paul Ryan budget:
Mr. Ryan talks loudly about the evils of debt and deficits, but his plan would actually make the deficit bigger even as it inflicted huge pain in the name of deficit reduction. But is his budget really the most fraudulent in American history? Yes, it is.
To be sure, we’ve had irresponsible and/or deceptive budgets in the past. Ronald Reagan’s budgets relied on voodoo, on the claim that cutting taxes on the rich would somehow lead to an explosion of economic growth. George W. Bush’s budget officials liked to play bait and switch, low-balling the cost of tax cuts by pretending that they were only temporary, then demanding that they be made permanent. But has any major political figure ever premised his entire fiscal platform not just on totally implausible spending projections but on claims that he has a secret plan to raise trillions of dollars in revenue, a plan that he refuses to share with the public?
And we trust these people? Dionne notes this:
A small hint of how this push to the right moves moderates away from moderation came in an effort last week to use an amendment on the House floor to force a vote on the deficit-reduction proposals offered by the commission headed by former Sen. Alan Simpson and Erskine Bowles, former chief of staff to Bill Clinton.
You learned only in paragraphs buried deep in the news stories that the House was not even asked to consider the actual commission plan. To cobble together bipartisan support, sponsors of the ersatz Simpson-Bowles amendment kept all of the commission’s spending cuts but slashed the amount it prescribed for tax increases in half. See how relentless pressure from the right turns self-styled moderates into conservatives? If there’s a cave-in, it’s always to starboard.
Note how many deficit hawks regularly trash President Obama for not endorsing Simpson-Bowles while they continue to praise Ryan – even though Ryan voted to kill the initiative when he was a member of the commission. Here again is the double standard that benefits conservatives, proving that, contrary to establishment opinion, Obama was absolutely right not to embrace the Simpson-Bowles framework. If he had, a moderately conservative proposal would suddenly have defined the “left wing” of the debate, just because Obama endorsed it.
This is nuts. Yet mainstream journalism and mainstream moderates play right along.
Did you follow all that? No? Ah, there’s no need to worry – all the foolishness will lead nowhere. The Democratic Senate will never pass any budget the Republican House proposes. You can trust the system to limit absolute absurdity. And as a backstop you can trust a wise and impartial Supreme Court to straighten out any real mess – except now you can’t. It started with Bush v Gore. The system is really broken now.
But you knew that. All you can do now is hope for the best, with no real reason to be hopeful. And that’s the blindest of faith.