Summer began – the summer solstice arrived, as it always does, and in Paris there was the Fête de la Musique – as there is every year. Along with the classical stuff in the parks and churches there’s always a bad amateur rock or reggae or techno band on every corner, hammering away until dawn. French pop music is problematic at best, but everyone drinks a lot and that helps. And then summer begins. The tourists flood in, the French hide, and by August every Parisian is long gone. They’re not crazy. They head to the mountains or the beach, or just the shady countryside. Mad dogs and Englishmen go out in the noonday sun. And crazy Americans think cities, and Disneyland, are wonderful in the blazing heat of summer. They’re not.
Of course we don’t take vacations anyway – real team players don’t just leave for two weeks, and if you’re not a team player you’re out the door sooner or later. And then there’s the resentment of those who have to cover for you while you’re gone, and what they might sabotage to make you look bad and get ahead in the organization. Life is, after all, competition for limited goodies. You snooze, you lose. And too, really, no one wants to be seen as a slacker – so it’s best not to even talk about vacation, even in the abstract. And of course there’s something else to consider. These days your job might not be there when you get back. You could return to find you’ve been reorganized or downsized out, or find that the whole company went belly-up while you were working on your tan. These are tough times. You don’t take chances. And finally, we’re not French after all. Here your work is your life, not your life. All those people in Europe seem to insist on enjoying what really doesn’t matter much at all. They don’t understand the inherent value of productivity. They seem to think it’s only a means to another end. We find that puzzling.
But summer is here. The kids are out of school, and bored. A few things shut down – the hockey and basketball seasons finally wrapped up, with a parade here in Los Angeles, the most unlikely new home of the Stanley Cup, and the brutal guys in Miami, who could never quite win the final game of the final series, finally exorcised their demons are whatever. They won. And now it will be a long summer in Oklahoma City, but it probably always is there. And in Washington at least one branch of government is shutting down for the summer. The Supreme Court is ending its current term and issuing its final rulings, on the hard cases, or those that are most controversial, because how they rule can change everything in America. They want to get things right. These are the cases they don’t want to rush, even if they heard the oral arguments long ago. Or maybe they decided these cases long ago and they’re just toying with us.
But they’re big cases – the matter of the new Arizona immigration law and deciding if the Affordable Care Act is constitutional at all. The first has to do with states’ rights and whether Arizona can set up its own rules about stopping anyone, at any old time, anywhere, who looks even slightly Hispanic and demanding their papers, and then throw them in jail if they don’t like the look of those papers. Arizona says this is necessary. The federal government says it gets to set immigration policy, and gets to make the rules, and you can’t just have every state doing its own thing – and additionally this one thing is illegal racial profiling and so oppressive it’s beyond stupid. Arizona says the federal government isn’t doing its job so they have to do it for them. The Supreme Court will decide that, along with the matter of the Affordable Care Act. There the main issue is the individual mandate – whether the government can demand that everyone buy health insurance or pay a fine, so the pool of those insured is large enough to cover the risk of adding people the insurance companies previously wouldn’t touch – including those with preexisting conditions – along with promising not to drop anyone’s coverage if they become too-expensively sick. The government – Obama’s folks now – argues this is permissible under the Commerce Clause. And many say that’s pretty damned obvious – the government has the right to regulate interstate commerce – it says so right there in the Constitution. But the new counterargument, invented this year, is that the government can tell you that you cannot buy this or that – fireworks or bazookas or whatever – but it cannot tell you that you have to buy something you don’t want. This is activity versus inactivity you see. Yeah, yeah – you have to buy car insurance, and buy a car with seat belts and headlights and all that – but somehow this is different. No one’s quite sure how it’s different. The Supreme Court will decide.
These are knotty legal matters of course, but they’re both highly political too. The Republican Party has now aligned itself with every angry white person who resents brown folks – there are too many of those around and they don’t know their place, and too many of them just walked across the border and are here illegally. They should be shipped back – every damned one of them. America is for Americans and all that. Now they don’t want to say it just like that – they’d like some Hispanic votes – but their base seems to feel that way, if you listen to talk radio and read all the signs in the street. The Supreme Court can help them out with the awkwardness of this by saying Arizona’s new law is just fine. That would provide political cover. They could then say they like Hispanics just fine, but the law is the law. And the right Supreme ruling would make Obama look bad. Obama would be the one who hates Real Americans, and the Supreme Court says so.
The same applies to any ruling on the Affordable Care Act. They came up with the idea of the individual mandate – if you have a system where most everyone is insured, which is good policy for the country, then there can be no one who gets a free ride, like someone who didn’t buy insurance and shows up at the emergency room with a broken leg. They hate freeloaders – so we need this individual mandate, thought up by their own Heritage Foundation and part of what Romney set up and vigorously defended in his highly successful Massachusetts healthcare plan. But this isn’t about policy. It’s about politics. The Supreme Court can strike down the individual mandate, making Obama look foolish, no matter how good the policy actually is. They can say he overreached, that he’s some sort of dictator trying to tell everyone what to do, and what they should buy even if they don’t want to. And the law will now say just that.
This might seem offensive. Using the law for political ends might not seem fair, or just, but one must remember the words of Oliver Wendell Holmes, Jr. – “This is a court of law, young man, not a court of justice.”
Yes, that’s a common mistake, often made by people who have some sort of romantic notion about the courts, and particularly the Supreme Court. Imagine a death row appeal, where the Supreme Court finds that the fellow about to be executed is entirely innocent – the evidence was insufficient or his court-appointed attorney an incompetent fool, but there was no judicial error in any of the proceedings, where all the rules were followed. Should they rule on his innocence, or rule on the law, which was scrupulously followed? Justice Scalia has held that mere innocence should not be a factor here – “Mere factual innocence is no reason not to carry out a death sentence properly reached.” The Supreme Court rules on law, not justice. The law is not about justice. And sometimes it is about politics.
But the Kings beat the Nets, ending hockey for the year, and the Heat beat the Thunder, and the summer solstice arrived right on time and there was music all over Paris for one night – and the Supreme Court has still not ruled on the Arizona’s odd new law and the Affordable Care Act – delaying summer for us all, even if none of us will take vacation. And everyone is waiting, suspecting what will happen, but as Kevin Drum suggests, quite amazed:
If the court does overturn the mandate, it’s going to be hard to know how to react. It’s been more than 75 years since the Supreme Court overturned a piece of legislation as big as ACA, and I can’t think of any example of the court overturning landmark legislation this big based on a principle as flimsy and manufactured as activity vs. inactivity. When the court overturned the NRA in 1935, it was a shock – but it was also a unanimous decision and, despite FDR’s pique, not really a surprising ruling given existing precedent. Overturning ACA would be a whole different kind of game changer. It would mean that the Supreme Court had officially entered an era where they were frankly willing to overturn liberal legislation just because they don’t like it. Pile that on top of Bush v. Gore and Citizens United and you have a Supreme Court that’s pretty explicitly chosen up sides in American electoral politics. This would be, in no uncertain terms, no longer business as usual.
But Ezra Klein says Drum needs to get over his quaint romantic notions about the Supreme Court, as of course the Supreme Court is political:
Legal academics are similarly concerned. I spoke with Akhil Reid Amar, a leading constitutional law scholar at Yale, who thinks that a 5-4 party-line vote against the mandate would be shattering to the court’s reputation for being above politics. “I’ve only mispredicted one big Supreme Court case in the last 20 years,” he told me. “That was Bush v. Gore. And I was able to internalize that by saying they only had a few minutes to think about it and they leapt to the wrong conclusion. If they decide this by 5-4, then yes, it’s disheartening to me, because my life was a fraud. Here I was, in my silly little office, thinking law mattered, and it really didn’t. What mattered was politics, money, party, and party loyalty.”
But Klein argues that there’s no reason to be surprised:
As an institution, the court is insulated from party politics, but the men and women who serve on it are increasingly selected through an intensely political process meant to insure that they don’t disappoint the party that promoted them. Both parties are trying to avoid nominating another David Souter, who had little paper trail and ended up disappointing his Republican sponsors by voting frequently with the court’s liberals. One way parties find judges they can trust is to pick people who have served the party loyally in the past. Chief Justice John Roberts worked for President Ronald Reagan; Justice Elena Kagan worked for President Obama.
So there are systemic and structural issues here, along with a cultural issue:
Similarly, the judges, who tend to live and work in Washington, are often ensconced in the social and professional networks of American politics. Justice Clarence Thomas’s wife, Ginny Thomas, has worked for Republican congressman Dick Armey, the conservative Heritage Foundation, and a Tea Party-affiliated group called Liberty Central, which has lobbied against the healthcare law. If that’s the group you hang out with on the weekends, how likely is it that you’ll be able to give the Affordable Care Act a fair shake? Imagine what would happen to Thomas socially if he was the deciding vote to uphold the law.
So don’t expect justice:
The people who serve as judges on the Supreme Court have been vetted by political parties, have often worked for political parties, frequently have loyalties to people in political parties who helped their career, and spend much of their time in Washington, where they sort into social groups they find congenial. They are, in other words, more, not less, political than most Americans. So it would be very surprising if they were less, rather than more, polarized on an issue as politically polarizing as the healthcare law.
And they will strike down the Affordable Care Act. The writing is on the wall. So let’s look at what’s really going on here:
I think the right question will be why so few in the legal academy saw it coming. If you think about the forces driving political polarization, and the process by which Supreme Court nominees are chosen, it’s easy to see how it might take some time for the Court to become a truly polarized institution – lifetime appointments mean the composition of the court doesn’t change very frequently – but it’s almost impossible to see how it avoids becoming a polarized institution eventually.
And Klein argues that this happened years ago. People are just noticing it now. They weren’t paying attention. They were foolishly thinking about justice.
And Jonathan Chait says the only question now is how badly the Supreme Court will screw up the law:
The Supreme Court is likely to announce soon if it has decided to declare the individual mandate unconstitutional. (This is to say, it’s announcing whether Anthony Kennedy hates health care reform a lot or only a little, because everybody assumes the other four Republican justices hate it so much they’ll declare it unconstitutional.)
As you can tell, I’m already bitter about this, as the constitutionality of the individual mandate is so obvious that the mere fact that the controversy exists suggests a frightening will to power by the legal arm of the conservative movement.
But Chait, oddly enough, thinks most of the bill is likely to stay in place:
The Affordable Care Act is a huge law that set out to do two basic things: provide health care to the uninsured, and slow down runaway health-care cost inflation. Most of the ideological clash centers on covering the uninsured – that’s the most morally compelling piece for liberals, and that’s the part that conservatives hate the most. But the Obama administration believed that the cost of the U.S. healthcare system, which is by far the highest per-person of any health care system in the world despite excluding tens of millions, had to be restrained over time. It invested enormous political capital into overhauling the health care system in ways too numerous and boring to list here.
The gist is a collection of methods, from using information technology to paying hospitals for better outcomes rather than more care to gathering and implementing research about what practices work best.
Chait covers all those details in charts and links, and adds this:
Now, obviously, covering the uninsured matters a lot, too. But keep in mind that half the people who will get health insurance through Obamacare will get it through Medicaid. This is important because, while the Supreme Court could literally do anything it wants, nobody expects the Court to throw out the Medicaid expansion, which simply adds more people to a four decade old program. And nobody expects the Court to touch the myriad cost containment reforms. So if you think of the law as half cost-containment and half coverage-expansion, and the entire cost-containment and half the coverage-expansion is almost certainly safe, the part that’s legally up for grabs is the other half of the coverage expansion, or about a quarter of the law.
And there’s the problem:
That quarter of the law is reforms to private insurance: Preventing insurance companies from denying coverage to prospective customers who are sick (or canceling benefits to customers who get sick), plus a mandate for individuals to obtain coverage and tax credits for those who need help affording it. This part of the law is extremely important, but it has taken on an outsized role in the public debate because Republicans have seized on it as a threat to extinguish freedom, and because it’s also the part of the law that basically copies Romneycare.
How much of this quarter of the law the Court decides to cut out is the guessing game.
And he sees these possible rulings:
Leave it all in place.
Technically eliminate the mandate to buy health care while leaving in place the fine for not having health insurance. (Essentially upholding the fine as a tax while technically eliminating the requirement.)
Eliminate the mandate, and the fine, but leave in place the regulations that insurance companies not discriminate against people with health risks and the subsidies for buying insurance.
Eliminate the mandate, the fine, insurance regulations, and the subsidies.
Nuke the entire law.
Chait thinks that last option is the hardest to imagine, but the rest are also tricky:
Healthcare wonks are already trying to figure out what would happen if the Court struck down the mandate. Everybody agrees the insurance reforms would work much better with a mandate in place. But how bad things would be if the mandate goes but the regulations stay is a matter of dispute. Here’s the dynamic. If you require insurance companies to offer coverage to people regardless of health, they’ll be tempted to go without coverage until they get sick. This can cause the dreaded death spiral: fewer and fewer healthy people are buying insurance, driving up premiums, making more healthy people drop insurance, until it collapses. States that tried to impose insurance regulations without a mandate saw a death spiral. The difference is that Obamacare includes tax credits for moderate income people to buy insurance, which could encourage them to stay in the market even if they’re healthy. For that reason, RAND and the Kaiser Foundation both predict the absence of a mandate would not result in a full-fledged death spiral.
So this might work out:
The main point to keep in mind is that the most likely scenarios in which the Court finds the mandate unconstitutional still leave most of the law in place. That is not going to come through in the media coverage, should this come to pass, because all sides are going to hype the importance of the decision: Conservatives tend toward triumphalism, liberals tend toward despair, and the news media tends to overplay the importance of whatever thing just happened.
And that’s all politics:
Striking down the mandate would be a huge deal legally, because it would signal the Court is prepared to resume its Gilded Age function as a kind of right-wing GOP super-legislature, wantonly tossing out laws that offend laissez-faire orthodoxy. It would be, in addition to a travesty of justice, a tragedy, depriving millions of Americans access to health insurance.
Hey, this is not about justice. It never was, and anyway it seems that striking the mandate would not end the law, or even most of the law. That’s good, but yes, it’s still a political act.
Now what? Maybe the Supreme Court should just do their political thing, so we can get on with summer, such as it is. We all need a vacation from this. And it’s obvious one shouldn’t take the Supreme Court too seriously. Life is, after all, competition for limited goodies. They and their buddies won, and now they get to distribute and withhold those goodies as they see fit. Justice never had anything to do with any of it.