Thursday, June 25, 2015


The Supreme Court has upheld the Affordable Care Act again, this time by a 6-3 decision in King v. Burwell. The case turned on a few words in the long, complicated law that inadvertently contradicted the intentions of the law's designers; most liberal and centrist experts believed the Court never should have agreed to hear the case, because the law was functioning as intended. It takes agreement by at least four justices to put a case on the Court's docket. Why did this case make it? And why did at least one justice who agreed to hear the case vote to uphold the law?

It seems highly unlikely that any of the four liberal justices would have agreed to hear the case, since they would have believed the wording error shouldn't trump the law's clear intent, and they wouldn't have voted to put the law at risk. The three justices who went on to dissent -- Alito, Roberts Thomas, and Scalia -- surely believe that the law is an abomination and that all Real Americans would be happy to see it go, whatever the consequences.

So was John Roberts the fourth justice to vote to hear the case, and if so, why? He's conservative, but he's politic. It's my guess that he believed the nonsensical conventional wisdom we've heard for years: that for all the fiery rhetoric that emanates from the right, the Republican Party isn't really a bunch of bomb-throwers. If Obamacare was doomed, surely cooler heads would prevail -- the Republican majorities in Congress would have a remedy ready to avert chaos. It would be certain to pass, and it would provide a gentle transition to a post-Obamacare future, because they are all honorable men.

That's my hunch -- and when Roberts (and presumably Kennedy) saw that elected Republicans really are crazy and really wouldn't be able to pass anything to avert an Obamacare death spiral, the law was saved. If my guess is right, a naive faith in the myth of GOP reasonableness was why the law was at risk at all.


I'm extremely happy that the health care law was saved, and I'm very happy that there's been a tremendous change in the politics of the Confederate flag -- but I wonder how much calculation there is behind this month's retreats from conservative purism. The preservation of Obamacare by the Roberts court does a couple of things for the GOP for 2016: It preserves Obamacare as a voter-motivating grievance for the party's base, and it makes it much more difficult for Hillary Clinton (or Bernie Sanders or whoever) to say that the Supreme Court is a force for wingnuttery that will only get worse if a Republican is elected president next year. Never mind the fact that the court will, in fact, be extraordinarily conservative if a Republican gets to restock it -- that warning will now ring hollow.

Roberts seems to be content to allow Republicans to run against him if it means Democrats can't -- and Nikki Haley and other Republican elected officials who've denounced Confederate symbols seem content to make that the public face of the party (in order not to alienate swing voters for 2016) while angrier voices (not just overt racists but pundits such as Bill Kristol and Todd Starnes) fan the pro-Confederacy backlash. In each case, it seems as if the GOP wants to keep rage alive while the best-known conservatives publicly reject that rage. I don't know if the good cop-bad cop strategy will work, but it reminds me of the heyday of birtherism, when A-list Republicans generally rejected the conspiracy theory while it flourished in less savory corners of the conservative universe. Next year, we'll see if all this works. It's certain, though, that the right looks much more reasonable now than it actually is, though I'm grateful for the concessions creating that illusion.


mlbxxxxxx said...

Ocare faces a real acid test when the employer mandate kicks in which is scheduled for next year. As in, 2016 the election year. Even if it doesn't generate widespread layoffs, whining and moaning will be heard throughout the land -- not the best environment for an election critical to the survival of Ocare. Coming on the heels of being denied wins in the Court, the righties are going to be merciless. It could get really ugly.

If folks become complacent and think Ocare is safe, they should reconsider. If it survives, I think it will hang by a thread for the foreseeable future.

Feud Turgidson said...

I'm inclined to accept your suspicion as accurate: that Roberts, at least, resorted to actually 'calling balls & strikes' due to how he saw doing otherwise redounding to the discredit of the Rule of Law. But - consider the possibility that it was Kennedy who provided the 4th vote critical to accepting the Moops challenge for review, and that Roberts did not add to the total.

Kennedy is very much the Court's Cheshire Cat. I CAN foresee him being motivated VARIOUSLY to have the ACA re-submitted to the risks of review but largely for the appearance. I can't say that about the CJ.

The majority opinion is not long but it is closely reasoned and VERY 'balls & strikes'. Moreover, it, properly in my view, avoided the namby-pamby approach taken in the lower courts in resorting to Chevron. That, to me, is very much within Roberts' character: his acting to facilitate a re-hearing for ANY reason is INCONSISTENT with his generally technocratic approach to analysis.

Scalia's dissent is drawing much praise, not obviously only from conservative and librotarian [sic] sources (not obviously meaning if only because much of the reader commentary on the Internet is protected by anonymity and I assume cons and libros [sic] take full advantage of their ability to post liberal-SEEMING commentary on lib-prog websites, particularly the ones with a lot of traffic and wide tolerance for not calling out evident hypocrisy like TPM & HuffPo (That approach can't work at sites at some higher traffic lib-prog sites such as Eschaton, LG&M & Crooked Timber, due to the closeness of regular commenters & their eagerness to swarm against even the most subtle stated bullshit wrongness, and certainly not at relatively light traffic lib-prog sites like this one). But Scalia's dissent is so easily open to being torn apart, and not just by the legally trained or competent, for employing various tricks and illusions and assorted sleights-of-cite to fail to meet the reasoning in the majority opinion head on. In the end, it's reminiscent of that Monty Python sketch where the professional "arguer" resorts to obvert gain-saying and merely asserts that as "argument".

And an important bonus feature of the analysis in the majority opinion, to me, is how it works to allow the Federal District and Circuit Appeal Courts to cut off future Moops challenges. Roberts, like we've seen from Obama a lot lately, has here said, Enough: no more mister nice conservative patsy chief on THIS front at least.

Feud Turgidson said...

mlbx etc: The ACA doesn't 'need' the employer mandate in the way it definitely 'needs' federal subsidies to be available in states without their own exchanges. There are other ways to deal with any gap in the employer mandate, and indeed just leaving the gap there unaddressed isn't fatal. Yes, it will be much preferable for Congress to fill the gap, but we've had a much bigger and more destructive 'gap' in the form of the 'Doc Fix' around for two decades now and managed to hang in there.

Victor said...

On the flag, Haley, Scott, and Graham took the bullet for their party because the Presidential candidates - declared, or waiting to declare - looked like a bunch of stuttering, hemming and hawing, Grade School children in a "Spelling Bee" designed for High School Juniors and Seniors.

And, just as he did the first time, Roberts - a very clever politico - this time sided with Kennedy and the liberals so that the GOP can still rail about Obamacare in the 2016 election, and this RINO SC Chief Justice.
What does he have to lose?
He has a lifetime appointment, and if the Republicans win the Presidency and keep the Congress, they can drum-up another challenge, and then to prove he's no RINO, vote the other way in the future.

petrilli said...

-- but I wonder how much calculation there is behind this month's retreats from conservative purism.

I share your caution, and am also heartened. This is after all, a strong but unyielding Manichean tyranny we suffer under in the new gilded age.

Against such brittle reductive reasoning, small cracks like ditching the Stars & Bars, and dis-allowing the "Moops" challenge, become gaping fissures very quickly. This is why right wing harridans wail and shit themselves over every little thing. Scalia jumped up and down like Rumplestiltskin today in his dissent. As he does in all his dissents. Only this time it isn't paranoia driving his tantrum.

"We live in capitalism. It's power seems inescapable. So did the divine right of kings."--Ursula K. LeGuin

Davebo said...

"The three justices who went on to dissent -- Alito, Roberts, and Scalia --"

It may be time for you to do a recount.

And that error sort of makes much of this post irrelevant.

Steve M. said...

Fixed now.

Ron said...

Next year when the employer mandate kicks in we'll hear another round of predictions of doom from the right. But it'll be no big deal.

Employers don't have to subsidize plans, merely offer them. Consumers will be able to buy with pre-tax dollars, saving them money.

Most firms outsource their payroll anyway, no doubt there will be an easy cloud based software offering to let people shop plans and sign up, so the hassle will be minimal.

And there will be even more people who will be directly benefiting from this law.